it please the court ian mcdonald assistant federal public defender on behalf of the appellant paul johnson jr a protective search under terry must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby that's the supreme court minnesota v dickerson reciting the standard that applies to this case if the search goes beyond what is necessary to determine if the subject is armed it is no longer valid under terry and its fruits will be suppressed again dickerson and here by not suppressing well but there's a little bit of a twist to that rights because the later cases indicate that you can continue grabbing something that may itself not be a dangerous weapon if the stop and the pat down are authorized at the first instance in minnesota b dickerson authorized the seizure of immediately apparent contraband that's the other way and here the court found that it was it you know in the district court's order that the officer did not know that mr johnson had a prior felony conviction and this could not have known that the bullet was contraband on feeling and so the government doesn't argue that it was contraband are left with the only lawful basis for the officer putting his hand into mr johnson's pocket continuing the search being that he believed he felt a weapon which might be used to harm the officers or others nearby and a bullet in a pocket is not a weapon that could be used to harm the officers or other nearby their friends ammunition indicate the presence of a weapon that might be a danger to the officers nearby in the vicinity whether it could indicate the presence of a weapon nearby seizure of the ammunition by further exploration of the pocket is a going beyond the scope of what's permitted under terror and that's what the officer did he put his hand into the pocket and retrieved not only the weapon the bullet but also a holster and we're seeking to suppress both of those things here and the holster is much more indicative of the potential presence of a weapon than a single bullet which a bullet could be you know a bullet key chain the answer didn't know what it was but the standard is again the search has to be limited to what is necessary for the discovery of weapons which you claim you didn't the officer those say that he believed at the time that he and there's no there's no dispute that when he fell through the through the clothing of the defendant that he fell the bullet i mean wasn't the officer pretty clear about that correct so he thought that with a bullet near you really the weapon is dangerous when it has bullets and that that he wanted to that that c him heightened concern that there was a safety risk isn't that a reasonable reaction of a police officer and isn't the record in this case that that's in fact what he believed what he said was and the facts of this case also you know mr johnson was handcuffed on the ground with multiple obs are supported you know gun with with guns pointed at him here he had a single bullet pocket that's not a an instrument that could be used to harm the officer the officer's testimony was maybe there's a weapon maybe there's another person in an apartment that may come out with something and the facts in this case simply don't demonstrate that that weapon could have been a and that that bullet could have been a weapon that could have in any way been used to harm the officer others nearby families or your argument that because he was handcuffed in the wise restrained by other officers that you could never go into his pocket even if you felt that there was a gun there not arguing for a bright line rule here your honor but i think under the circumstances of this case there is no plausible basis that that single round of ammunition could have been used to harm the other officer or others nearby and that's the standard and when the district court didn't suppress the bullet and holster which are only found the holes are only found after going into the pocket that did not apply the standard in terry and if you look at the cases here you know u s v clay eleventh circuit there the officer reached into a suspect pocket after a pat down the search continued according to the court only because he thought a long thin object might be a screwdriver or something similar that might be used as a weapon and that being a ballpoint pen hollowed out barrel that's used for drug activity but the only basis of the court is very clear t search could continue only because he thought it might be a screwdriver or something that could be used as a weapon similarly u s b knox one of the cases cited in the government's brief there during a pat down the officer reached in discovered an ammunition clip but a police officer feels what he says he recognized as a point so at that moment the defendant in the knows that there is something in his pocket that has been already been identified what further constitutional violation is there by simply looking at the point after you take it out of their pocket well there is a constitutional violation in putting your hand into the pocket because that's not necessary for the discovery of weapons which might be used to harm the officer others nearby therefore the officer had no reason to put his hand in the pocket or seize the bullet and here they were responding to mr johnson was outside his own home he immediately the officers came immediately got him on the ground handcuffed him he wasn't doing the thing that they thought that they were called there for which is a suspected burglary he was merely outside his own home got handcuffed and put on the ground and frisked at that point they didn't know there was anything illegal about the bullet they didn't know anything about and didn't ask him a single question before getting on the ground handcuffing them so they knew there was nothing illegal at that point in the officer's mind about the bullet and the bullet couldn't have been used as a weapon to harm the officer others nearby so the search under the strict law of the supreme court had to end at that point it's a macdonald the the fourth amendment generally gets interpreted through objective criteria right in a lot of circumstances we look at what a reasonable officer would or should have or was permitted to do but in the terry in the terry scenario there seems to be some element of subjectivity that goes into the analysis what what's your thought about that the other words do we do we look at what this particular officer believed or thoughts or imagined or do we look at what someone in his position might have thought or would have thought or should have thought or it's a combination of the two it's what an officer what the officer could reasonably have believed and here he this officer date officer in his position an officer in his position that standard is applied to this particular officer in the case and here he what he believed he felt he testified immediately he didn't say that he felt a hard object that might have been a weapon he didn't say that he felt the holster in fact he was very specific he did not know what the holster was until it was removed from the pocket the only thing he felt was a single bullet small what  of a gun right so i haven't looked at the transcript in awhile to know exactly what the officer said about to remember what the opposite of what the holster but you can imagine that if someone is doing a pat down and feel something that has the shape of a handgun then they might reasonably think it's a handgun and then try to figure out whether their suspicion is correct or not not so much with a bullet so i'm not sure your argument is a strong with one as it is with the other i think that's i think it absolutely right ron i think that had he felt something that he thought was the shape of a gun and reasonably believed it was a gun he would have been justified in seizing it but that's not the fact here and he's testing afterwards testified specifically which we reached in the pocket found in nylander which we later found out was a holster then i asked in the supplemental transcript and you said you found a holster this is after you had already taken it out of the pocket correct answer correct is he asked what he whether he even felt were turned out to be a holster when he was doing the pat down or whether he just missed it as he was going through it is he's asked you testified what you felt to be a nylon piece of material right correct and then an oval shaped object he testified he did not know what the holster was until he retreated so there you have two items that were seeking to suppress here of the bullet which he says he felt and the holster which he admits on the stand that he did not feel until he then further put it you know put his hand into mr johnson's pocket furthering the intrusion after he had already testified specifically that what he felt was a bullet not a weapon which could be used to harm the officers or others nearby and that is where it ran afoul of the fourth amendment that's that that's the law and that's not the standard that the district court applied here and because the officer did that that is why the  suppress the bullet in the holster and it's like my time's almost up so for the reasons set forth today in the briefing i would respectfully request that the court reverse the district court's decision to deny suppression of those items or thank you very much was from suspicion that a burglar would be armed the subsequent retrieval of the bullet that was already identified before the hand went into the pocket did not add to the officer's knowledge it was not what justified the subsequent area search of the crime scene which discovered the weapons written which i think i wrote a little bit different on its facts is it not because there are you had someone specifically identifying the individual as the suspected burglar and so the police weren't just responding to a general suspicion of a burglar or burglary in the area but of someone who was actually targeted by witnesses as the person who had committed the crime and therefore the inference of the person maybe having a weapon was kicked in not so here though well yes in griffin we had people specifically say this is the guy in this case what we have is someone around four am and a report of an ongoing burglary the vavasor's testified they responded within about five minutes or less and they found a person matching the description coming out of the area of the reported burglary scene and in griffin this court cited as basis that what is sufficient to justify a search of a burglary suspect is that because burglary is a type of offense normally and reasonably expected to be armed police do not require additional information suggesting the sub specked may be armed before they start someone reasonably suspected of being a burglary right that the last part is the key it seems yeah i believe it is your honor and someone coming out at four am there was no one else in the area  description of an ongoing burglary within five minutes there was a burglar he alleged to have taken place in a duplex of you know home area the person will came out of the alleyway that was where the scene was it was dark he was the one coming out he matched the description it was within five minutes or less the officer said of the report i think that is sufficient basis for the officers to conclude that this is the someone reasonably suspected of being a burglar to justify the initial terry stop and frisk and in fact the defense doesn't even to challenge the if this had happened in it at the time other than four am would your position be the same not necessarily want to because it in that case where i would suspicion of that person being the burglar also kick in i mean all the facts add together the reason the four am is an important fact is because it's a reasonable conclusion for officers to make that when you arrive somewhere at four am there aren't a lot of people around or someone is there at the site of reported ongoing crime at four am matching the description and there's no one else around this is probably the person who was the object of the report and in fact th anyone's my question is would your position remain the same if the timing were different this were eleven o'clock in the morning let's see i think our position would be we get because the eleven am there is less people aren't generally around outside between buildings at four am as eleven am they are so the fact that it is four am adds to the circumstances that justified the initial detention and i think it's important to note the defense does not dispute the basis for the initial detention they've that's been on the magistrate in the district court have made that have noted that the initial detention of those of the burglary suspect isn't being challenged so i think it was recently in these cases you take it step by step to see what was in the officer's knowledge at the time how they continued their investigation so when you come to a crime scene within five minutes at four am find someone matching the description and in fairness the description was a black man with a white shirt yes so going back to judge jordan's question if this were eleven am and they also spotted a black man in a white shirt i mean  that's not very specific right yeah i mean did add eleven am would make this a weekend case because you would have less reason to think why someone around at all for it you know at eleven am at four am at four am that's less reason for him to be there at all unless he's the person that was the subject of the call and eleven am more likely to find people around even if you even if he's the only one even if he's the only one it would be a weakened case at eleven am but given that this was a report in a high crime area i mean get taking it step by step when you reached the crime scene within less than five minutes at four am and find someone even you know an african american male wearing a white shirt coming from the area exactly where the report was that where the crime was said to be going on walking out of that dark you know alley but you know next to the home it is reasonable to stop that person and conduct  the terry stop and frisk and as i said the initial terry stop is not even being challenge it's only what happens once he starts patting him down that's being challenged so let's go let's go on to that for a second how would it be reasonable for a police officer generally even if they felt what they thought was a bold what to say that that created a danger in the danger being disassociated bull like from some maybe firearm that he couldn't access because he's detained what justifies the removal of anything from his pocket the officers at this point that you take what is do they know at the time and what is what is the step by step approach to investigation what they knew at the time devoted identify that it's a bullet they know it's an ongoing burglary that they've been called to report to they know that this is a crime area with armed burglaries being common and this court has found that it is reasonable for officers to assume that a burglary suspect is or would have been armed what the officers testified to is that once he identified the bullet he retrieved it just for officer quote his testimony just to try to make the scene secure as much as possible how could they how could the seizure of a bullet from somebody who's pocket in the absence of a gun lead a police officer reasonably believe that that was necessary in order to protect officer safety the interest in protecting officer safety i think needs to bend to result whether one of the two actions he takes in response to identifying the bullet and the justification for each is a little bit different i want to make that clear because the issue of whether the retrieval itself was justified is separate from the issue of whether the area search of the crime scene for evidence and weapons is justified because ultimately that's what's at issue in this case the evidence of the guns that were found in the area search which is search independent of the defendant's own fourth amendment interest the search of the crime scene it's independent of his of the defendant's fourth amendment lists so even if this court were to find that retrieving the already identified bullet was unjustified it would be a separate question as to whether to search the area search that found the weapons was justified now the government cited cases like scoggins and the court has also noted that wind officers doing a frisk find hard objects even ones that they don't necessarily believe are guns sometimes they pull them out just to put them down on the scene and the standard in dickinson for what it is a violation is if there was a continued exploration beyond the pat down in this case because the officers had already been off the william testify that he had already identified the object he felt as a bullet the retrieving of the bullet was not a continued exploration under dickinson sure it was at nobody challenges i should say that there's a difference between justifying the pat down and then justifying the further fourth amendment intrusion a supreme court has characterized that of reaching in and grabbing something in a person's jacket or pocket or something like that those are two separate things are they not wise your honor said having identified the bullet looking at the bullet didn't add anything to the officer's knowledge or develop any further and copper tory sharrod evidence sure does why do you think he wants to suppress it because it makes your argument about being a felon in possession harder he might be willing to take his chances at a trial but if they found the guns nearby and they also found the bullet on him along with a holster then it's much more likely the going to think that's those are your guns because why else would you have a bullet in wiles would you have a holster so he wants to suppress it and you're right that the fourth amendment search that led to the guns themselves may be totally different but he may be willing to take his chances with a jury at that point in time it can't be that you can always reach in once you've identified an object right i mean if if if i if i am a pen con a sewer as a police officer and i know that i have i just felt a mont blanc pen i can't pull it out right you're right roger but a bullet is not a pen and i don't want to do it so why is it going back to judge duffy's question if context matters and you've indicated that at least in some ways context matters timing matters why doesn't it matter that he is detained on the ground and restrained at the time that the extraction of the bullet occurs ok there's a couple questions i want to make sure i get them all the if you're asking about whether the his bridge being in restraints limits the search i don't think it does your honor because even this court has noted in many cases protective sweep circumstances lots of circumstances that when the officers are securing an area the fact that a suspect is under control even under  handcuffs doesn't limit the fact that someone even underhand in handcuffs is capable of reaching around and anything within the reasonable grasp of a defendant is something that officers can can secure the area for and look for guns i agree but those are different fourth amendment russian ells like like you said a protective sweep we're not dealing with those here we're dealing with going through some interior compartment of his clothing to pull something out so why is officer safety triggered if he's on the ground detained restrained and can't go anywhere again the issue of the restraint i want to dress first and then move on to the bullet the restraint itself does not limit the officers ability to make sure a suspect is an armed you would not leave a possibly armed suspect even a handcuff suspect sitting there with a gun in his pocket while you're investigating a crime scene no i agree with that that goes to the initial pat i understand that but reaching in and grabbing it and taking it how does that further officer safety if the bullet to put on the ground next to him was not justified again the ultimate issue is whether that affected the search the found the guns that the defendant later himself after miranda admits he was holding and was in possession of holding for his brother and his cousin i don't want to iraq are standing is that the bullet was the same caliber as one of the gun one of the guns found yes there is a connect is a connection between that particular bullet and the guns and one of the guns i want to make sure i do correct one mis clear because the holster was not something that the officer could could feel on the outside was a holster that was something that the officer could not did not identify as a holster until it was pulled out and he didn't need to pull it out because he didn't think it was a weapon no but up but and how what's the justification for getting in the the pool he was simply put in his mind he was simply putting down the objects that he had felt he was doing a search incident to arrest without an arrest in his mind he was just continuing his frisk but that but that's a search incident to arrest is it not i mean the dickerson the teary dickerson rationale is not the same two things in the pocket there's the holster and then there's the bullet yes they're there and i want to distinguish between those two there is authority including his latest last week in an unpublished decision by the circuit that says that something which is readily identifiable that x that extracting that from a pocket or some other place on a person isn't any further violation of anybody's right and that's that's not prohibited now that might apply to that to the ball but does that apply to the whole street no because as i said the officer's testimony was that he felt something nylon but did not identify it as a holster until he pulled it out so even if the holster separate from the bullet were to be excluded again the ultimate issue is the fact that none of that was what justified the area search that found the weapons that the defendant later admitted to that was not fruit of the poisonous tree because that wasn't what justif exploitation of retrieving the bullet or the holster that led the officers to search the area of the crime scene for further evidence or the weapons that they thought would go with something that they'd already identified as a bullet before they reached into his pocket that argument is not when you've made in your briefs or you're not asking us to affirm the conviction on the alternative ground that even if the bullet in the holster gets suppressed then his guilty plea is still valid i believe we have on our did say that the search the deep did you did i have the motion to suppress would still have been correct because that the search was independent would have taken place regardless but he's not just seeking to suppress the guns he didn't just seek to suppress the guns right i mean you could have a motion to suppress five things and you my only be successful on two of them and then you have to decide ok if three of them are coming in what do i do do i take a guilty plea or do i go to trial but a trial with a harmless error scenario that this is a guilty plea yes you are well we're not conceding of course that any of that any of it should have been suppressed but if the court were to rule that some of it would be suppressed i suppose it might have to go back to furthe proceedings but the the evidence that the gun certainly would not have been some suppressed if anything it would it would the court would have to find what in particular is the sump is the evidence that should have been suppressed because he pled guilty to possession of a farm and ammunition correct i believe that's correct so if he has one board in his pocket that's not suppressed having pled to as a felon in possession of ammunition that would still be valid conviction  i mean the bullet was independent of the reach and the guns were independent of the region and his plea was to possessing the guns that he admits to and the bullet which was identified before the search we believe of course that that answers part of the question which is that if we were to reject your position it has to go back down because at least one of the guilty pleas is in question right the guilty plea to possess whether separate counts for the gun and for the ammunition or was it a joint count well i believe it was one count you're on i'm sorry but i think what we're saying is that the bullet itself was identified independent of the region so it would the court would have to find that the of you've got your full five minutes thank you very much your honor just to quickly touch on a couple of points the government made the government heat before you do that just to see if we can confirm the procedural aspect the soul count joined together the ammunitions and the firearms correct or not he was charged in a one count indictment on the possession of the bullet and the two firearms ok got it thank you and before you get to let me reason new point  and to make that finding there was an adverse credibility determination that the magistrate had made about the officers testimony on that and the district court or the magistrate concluded we need not consider whether johnson consented to a search because there was a they found there was a lawful frisk and the district court said johnson's consent was irrelevant here so that issue wasn't reached below and in any event the record in the record it says that the officer williams testified that he pa of pat johnson's down felt the hard object and that's when he claimed that this supposed consent would have occurred so and he consent would have happened after the pat down of the object was already discovered well it's it wasn't just a hard object i think we've already had this discussion that it was in fact a bullet that he identified correct or that's what he subsequently clarified his testimony to what he believed the heart of it to be correct so what does griffin then stand there isn't stand for the proposition that if you have any and identify object to do a further search in order to retrieve the identifiable object that that's no further violation of the defendant's constitutional rights in griffin you know he was and in terms of the initial stop there was a lot more information than there was here they specifically knew description of the person a witness had told the officer a sign recut the person have a handgun there was a you're not questioning the stop and and the and the french corey not questioning the stop but questioning the frisk i think that here were the extent of the frisk even even the frisk itself i think is suspect under griffin mr johnson you know the only similarity similarities between griffin which is the main case the government lies upon and here or that you know it was in a supportive high crime area and they were investigating an attempted theft you know here none of the other factors that are present in griffin for instance the officer was alone at night surrounded with six to eight other people here m johnson was alone surrounded by multiple officers in griffin the person acted a vase of lee refused to obey commands to stop so a lot of factors were present in griffin that were present here and you know the government touched on briefly you know this court saying in griffin that because burglaries are usually armed and that sufficient to believe that someone is armed and dangerous which is the standard for us but in griffin this court specifically declined to do that declined to hold that burglary being called to a burglary alone was sufficient said we not need we need not decide today whether to adopt such a categorical terry rule there together the attendant circumstances these things i've just listed evasive action at all the other factors officer alone surrounded by people is what drove the court's holding in griffin and the government also mentioned i mean there's lots of authority in the circuit that especially in a high crime area it's undisputed that this was a high crime area there were somebody gets a call from a dispatcher saying there's a fellow who's trying to break into he's wearing a white shirt i think dark pants and they end up going to the place where the burglary is supposed to be happening and they find one person that meets that description shortly after they receive the dispatch and knowing that in a high crime area that other burglaries had been there were farms have been used isn't this isn't that have to present enough facts to show that they at least the initial stop was allowed under terry initial stop but the frisk is a is a tougher question because here you just had you know they said the government is context matters it was to the extent of matters of five am not for getting closer to dawn one person black male white shirt only description they have nothing like reaching for a waist band seeing a bulge acting evasive fleeing any of the other factors that courts generally consider would leave enough that a reason to believe the suspect was armed and dangerous is that i'm running out in teary wasn't worth the facts and theory that some police officers across the street saw guy from you furtively looking at of retail store in the in the in the supreme court interior this all starts of that that was enough to have a  saw several individuals walking by a retail store multiple times i believe ten to twelve times the officer saw these people two individuals look in the store stop come back look in the store again move sent a police officer saying we have a report of a burglary smy trying to break into a house we want you to go and look into it and by the way here's to you we want you for a black male with a white shirt it's four thirty in the morning or  five you know i get up early on hasn't been lighted five o'clock for a long time you know in my history and isn't that enough for somebody to have an investor investigatory stop an investigatory stop you're on about it as as arguing the briefs there's the other factors that are typically there that justified the second aspect which is the frisk or just not present in this case the court has no further questions i would respectfully from set forth in the briefing and here again request of the court reversed the district court's decision to deny suppression of the whole stromboli and would you would like is if you if we were to agree with your position is just simply to remand and then allow mr johnson to decide what he is going to do correct your honor ok thank you very much mr mcdonald thank you