1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-16-1995

United States v Johnson

Precedential or Non-Precedential:

Docket 94-7646

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Recommended Citation

"United States v Johnson" (1995). 1995 Decisions. Paper 223.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/223
1 UNITED STATES COURT OF APPEALS 

2 FOR THE THIRD CIRCUIT 

3 

4 

5 

6 No. 94-7646 

7 

8 

9 UNITED STATES OF AMERICA, 

10 

11 Appellant, 

12 

13 v. 

14 

15 PAUL N. JOHNSON; DARRYL JONNS; 

16 LAMONT BELL; and CRAIG RICHARDSON, 

17 

18 PAUL N. JOHNSON, 

19 

20 Appellee. 

21 

22 

23 

24 Appeal from the United States District Court 

25 for the Middle District of Pennsylvania 

26 (D.C. Crim. No. 1:CR-94-145-1) 

27 

28 

29 Argued April 18, 1995 

30 

31 

32 Before: STAPLETON, HUTCHINSON and SEITZ, Circuit Judges. 

33 

34 Filed: August 16, 1995 

35 

36 

37 David M. Barasch, United States Attorney 

38 Dennis C. Pfannenschmidt, Assistant U.S. Attorney (Argued) 

39 Office of the United States Attorney 

40 Federal Building 

41 228 Walnut Street 

42 P.O. Box 11754 

43 Harrisburg, PA 17108 

44 

45 Attorneys for Appellant

46 

47 Spero T. Lappas, Esquire (Argued) 

48 205 State Street 
2 

1 P.O. Box 808 

2 Harrisburg, PA 17108-0808 

3 

4 Attorney for Appellee

5 Stefan Presser, Esquire 

6 ACLU of Pennsylvania 

7 125 South 9th Street, Suite 701 

8 P.O. Box 1161 

9 Philadelphia, PA 19105 

10 

11 David Rudovsky, Esquire 

12 ACLU of Pennsylvania 

13 Kairys & Rudovsky 

14 924 Cherry Street, 5th Floor 

15 Philadelphia, PA 19107 

16 

17 Eric B. Henson, Esquire 

18 Jan Fink Call, Esquire 

19 R. David Walk, Jr., Esquire 

20 Hoyle, Morris & Kerr 

21 4900 One Liberty Place 

22 1650 Market Street 

23 Philadelphia, PA 19103 

24 

25 Attorneys for Amicus Curiae ACLU of Pennsylvania

26 

27 

28 

29 

30 OPINION OF THE COURT

31 

32 SEITZ, Circuit Judge.

33 Paul N. Johnson ("Defendant") was indicted by a federal 

34 grand jury for conspiracy to distribute narcotics, see 21 U.S.C. 

35 § 846, possession and distribution of narcotics, in violation of 

36 21 U.S.C. § 841, and related firearms offenses, see 18 U.S.C. 

37 §§ 922(g), 924(a)(2), (c)(1), (c)(2). The government appeals 

38 here from an order of the district court granting Defendant's 

39 pretrial motion to suppress contraband seized by the Pennsylvania 

40 State Police during a vehicle search. The district court had 
3 

1 jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction 

2 pursuant to 18 U.S.C. § 3731. The trial has been stayed pending 

3 the disposition of this appeal. 

4 I. FACTS

5 The historic facts are taken from the memorandum 

6 decision filed by the district court, see FED. R. CRIM. P. 12(e), 

7 after the hearing on Defendant's motion to suppress the seized 

8 materials. 

9 A Pennsylvania State Trooper, while following a vehicle 

10 traveling on Interstate 78 toward Harrisburg and driven by 

11 Defendant, noticed "several large objects," which appeared to be 

12 air fresheners, hanging from its inside rearview mirror. Because 

13 he believed the hanging objects constituted a violation of the 

14 Pennsylvania Vehicle Code, see 75 PA. CONS. STAT. ANN. § 4524(c) 

(Supp. 1994),115 the trooper engaged his overhead lights and 

16 signaled for the vehicle to pull to the side of the road. 

17 After both vehicles stopped, the trooper asked 

18 Defendant to produce his driver's license and automobile 

19 registration card. Defendant produced a South Carolina driver's 

20 license bearing the name "Tracy Lamar Washington." Although he 

21 was unable to produce an automobile registration card, a 

 

1Section 4524(c) provides in relevant part: 

(c) Other obstruction.─No person shall drive 

any motor vehicle with any object or material 

hung from the inside rearview mirror . . . as 

to materially obstruct, obscure or impair the 

driver's vision through the front windshield 

or any manner as to constitute a safety 

hazard. 

Title 75, § 4524(c). 
4 

1 violation of the Pennsylvania Vehicle Code, see 75 PA. CONS. STAT.

2 ANN. § 1311(b) (Supp. 1994), Defendant told the trooper that he 

3 owned the vehicle. See Appendix at A60-A61. At that point, the 

4 trooper went to his patrol car and had the police dispatcher run 

5 a check on the vehicle's license number. 

6 While waiting for the vehicle check to be completed, 

7 the trooper spoke separately with Defendant and the other 

8 occupants of the vehicle. According to the trooper, during these 

9 conversations Defendant as well as the passengers seemed 

10 "unusually" and "exceptionally" nervous and gave the trooper 

11 conflicting statements about the origin and the destination of 

12 their trip. Although Defendant knew the name of one of the 

13 passengers, he could identify another one only as "T." The 

14 trooper testified that the circumstances caused him to suspect 

15 that there were narcotics or contraband in the vehicle. 

16 The trooper asked Defendant whether there was anything 

17 illegal in the vehicle, and Defendant replied in the negative. 

18 The trooper then asked Defendant for his consent to search the 

19 car and presented him with a consent form to read and sign. 

20 Although Defendant would not sign the form, the trooper testified 

21 that he orally consented to the search. In the search that 

22 followed, the trooper discovered one-half pound of marijuana, one 

23 and one-half ounces of cocaine, one ounce of a substance often 

24 used to "cut" cocaine, and a digital scale. At that point, the 

25 trooper read the adult occupants of the vehicle their Miranda

26 rights, then placed them under arrest, and seized the contraband. 
5 

1 Defendant was first charged in state court with a 

2 number of violations under the Pennsylvania Crimes Code, the Drug 

3 Code, and the Vehicle Code. He, thereafter, filed a pretrial 

4 motion to suppress the seized drugs and other contraband. The 

5 Court of Common Pleas for Berks County, Pennsylvania suppressed 

6 the seized materials found in the vehicle because it concluded 

7 that they were obtained during an unlawful search. That action 

8 was later nolle prossed. See id. at A71. 

9 Defendant was also charged in the district court with 

10 federal narcotics and firearms violations. Again, he moved to 

11 suppress the same materials obtained by the trooper following the 

12 traffic stop. Thereafter, the district court conducted a 

13 pretrial suppression hearing and concluded that the traffic stop 

14 was used by the trooper as a pretext, that is, a legal 

15 justification for an otherwise unconstitutional vehicle stop 

16 based on suspicion of narcotics possession. See United States v. 

17 Johnson, No. 1:CR-94-145-01, slip op. at 6 (M.D. Pa. Oct. 24, 

18 1994) ("Mem. Op."). As a result, the court found that the 

19 subsequent search and seizure were tainted by this pretextual 

20 stop and the seized materials were suppressed. The government 

21 appeals that order. 

22 II. DISCUSSION

23 Some preliminary observations are appropriate to an 

24 understanding of the structure of this opinion. 

25 We emphasize that this is an appeal by the government 

26 from an order of the district court granting Defendant's pretrial 

27 suppression motion. In the district court, Defendant set forth 
6 

1 what we understand to be two grounds for suppression: (1) the 

2 traffic stop that eventuated in the seizure of the illegal 

3 materials was unconstitutional, thus tainting the seizure; and 

4 (2) the real reason for the traffic stop was to find a way to 

5 search for drugs and not to enforce the traffic laws. As we read 

6 the memorandum decision of the district court, it rejected 

7 Defendant's first ground but relied on the second, i.e., pretext, 

8 to grant his motion. 

9 On appeal the government attacks the district court's 

10 pretext finding, which, of course, the Defendant supports. We 

11 will initially address whether the district court erred in its 

12 ruling on the first ground in Defendant's motion. We do so 

13 because if the district court erred in that determination, it 

14 would be unlikely that the more complex pretext issue would be 

15 decided. See, e.g., United States v. Shabazz, 993 F.2d 431, 435 

16 n.3 (5th Cir. 1993). 

17 A. Was The Traffic Stop Justified? 

18 The United States Supreme Court has held that stopping 

19 a car and detaining its occupants is a seizure under the Fourth 

20 Amendment. See United States v. Hensley, 469 U.S. 221, 226 

21 (1985); see also United States v. Velasquez, 885 F.2d 1076, 1081 

22 (3d Cir. 1989), cert. denied, 494 U.S. 1017 (1990). However, a 

23 stop to check a driver's license and registration is 

24 constitutional when it is based on an "articulable and reasonable 

25 suspicion that . . . either the vehicle or an occupant" has 

26 violated the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979); 
7 

1 see Velasquez, 885 F.2d at 1081; see also 75 PA. CONS. STAT. ANN. 

§ 6308(b) (Supp. 1995).22 

3 As a general rule, the burden of proof is on the 

4 defendant who seeks to suppress evidence. See United States v. 

5 Acosta, 965 F.2d 1248, 1256 n.9 (3d Cir. 1992) (citations 

6 omitted). However, once the defendant has established a basis 

7 for his motion, i.e., the search or seizure was conducted without 

8 a warrant, the burden shifts to the government to show that the 

9 search or seizure was reasonable. See United States v. McKneely, 

10 6 F.3d 1447, 1453 (10th Cir. 1993). 

11 The trooper testified that he stopped Defendant's 

12 vehicle because, based on what he saw, he believed it was in 

13 violation of the Pennsylvania Vehicle Code. See Appendix at A57. 

14 As we read the district court's memorandum decision, it accepted 

15 this testimony. See Mem. Op. at 12, 14. This finding of fact 

16 exceeds the showing required of the government to justify the 

17 traffic stop under Prouse, which requires only an articulable and 

18 reasonable suspicion that the car was in violation of 

19 Pennsylvania law. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 

20 109 (1977); Velasquez, 885 F.2d at 1081. Because this finding is 

21 not clearly erroneous, we conclude that the district court 

 

2Under section 6308(b) of the Pennsylvania Vehicle Code, a 

trooper who has reasonable and articulable grounds to believe 

that a vehicle or driver is in violation of the Vehicle Code may 

stop the vehicle. See Commonwealth v. Benton, 655 A.2d 1030, 1033 

(Pa. Super. Ct. 1995). Although an actual violation need not be 

established, a reasonable basis for the officer's belief is 

required to validate the stop. See id.; Commonwealth v. McElroy, 

630 A.2d 35, 40-41 (Pa. Super. Ct. 1993). 
8 

1 correctly determined that the trooper's basis for the stop, 

2 standing alone, met Fourth Amendment requirements. 

3 B. The Pretext Issue

4 Although the traffic stop itself met constitutional 

5 requirements, the district court suppressed the seized materials 

6 because it found that the traffic stop was merely a pretext to 

7 find a basis to thereafter search Defendant's vehicle for 

8 narcotics and, as such, was violative of the Fourth Amendment. 

9 See Mem. Op. at 16. We now determine whether the district court 

10 applied the proper standard in determining that the stop was 

11 pretextual. This important issue presents a question of law 

12 subject to plenary review. See United States v. Deaner, 1 F.3d 

13 192, 196 (3d Cir. 1993). 

14 In evaluating the constitutionality of a police traffic 

15 stop, most courts agree that an objective analysis of the facts 

16 and circumstances surrounding the stop is appropriate. See, e.g., 

17 Scott v. United States, 436 U.S. 128, 137-38 (1978); United 

18 States v. Whren, 53 F.3d 371, 374 (D.C. Cir. 1995); United States 

19 v. Hawkins, 811 F.2d 210, 213 (3d Cir.), cert. denied, 484 U.S. 

20 833 (1987). However, courts of appeals have had some difficulty 

21 in applying this objective assessment to the argument that a 

22 traffic stop, otherwise lawful, is really a pretext to search for 

23 evidence of an unrelated serious crime and, thus, unlawful. 

24 Neither the Supreme Court nor this court seems to have directly 

addressed this constitutional issue.325 

 

3Some courts have characterized this court's opinion in United 

States v. Hawkins, 811 F.2d 210 (3d Cir. 1987) as endorsing the 
9 

1 The majority of the courts of appeals have adopted the 

2 so-called "authorization test." Under that approach, materials 

3 seized following a traffic stop are admissible so long as a 

4 reasonable police officer could have made the stop (also known as 

5 the "could" test). These courts simply inquire whether, at the 

6 time of the stop, the police officer reasonably believed the 

7 defendant was committing a traffic offense, and whether the law 

authorized a stop for such an offense.48 

9 A minority of the courts of appeals have adopted the 

10 "usual police activities" test (also known as the "would" test). 

11 Applying that test to a traffic stop, materials seized are 

12 admissible as evidence only if a reasonable police officer would

have made the stop in the absence of an invalid purpose.513 These 

14 courts inquire not only into the legality of the stop, but also 

15 into its conformity with regular police practices. 

 

"authorization" test. See, e.g., United States v. Scopo, 19 F.3d 

at 783; United States v. Ferguson, 8 F.3d 385, 389 (6th Cir. 

1993). In Hawkins, the police gave a pretext, a traffic 

violation, as the reason for stopping a vehicle whose occupants, 

they believed, were involved in the purchase and sale of 

narcotics. This court, without relying on the pretext asserted 

by the police, found an objectively reasonable basis for the 

stop. See Hawkins, 811 F.2d at 215. It stated that the pretext 

used by the police did not render an otherwise constitutional 

search invalid. See id. Therefore, the court was not required to 

address the allegedly pretextual nature of the traffic stop. 

4See Whren, 53 F.3d at 375-76; Scopo, 19 F.3d at 782-84; United 

States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994); United States 

v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994); United States v. 

Roberson, 6 F.3d 1088, 1092 (5th Cir. 1993); Ferguson, 8 F.3d at 

389-91; United States v. Hadfield, 918 F.2d 987, 993 (1st Cir. 

1990), cert. denied, 500 U.S. 936 (1991); United States v. Hope, 

906 F.2d 254, 257-58 (7th Cir. 1990). 

5See United States v. Millan, 36 F.3d 886, 888 (9th Cir. 1994); 

United States v. Dirden, 38 F.3d 1131, 1139-40 (10th Cir. 1994); 

United States v. Harris, 928 F.2d 1113, 1116-17 (11th Cir. 1991). 
10 

1 In this case the district court adopted the minority 

2 approach, the usual police activities test. It held that a 

3 "reasonable" trooper would not have stopped the vehicle for the 

4 minor traffic violation here involved, absent a "hunch" that the 

5 occupants were trafficking in narcotics. See Mem. Op. at 15-16. 

6 The usual police activities test, the court reasoned, "is most 

7 faithful to the spirit of the Fourth Amendment." Id. at 13. 

8 Thus, we must decide, under a plenary standard of 

9 review, whether to adopt the minority standard employed by the 

10 district court or the rule of the majority of the courts of 

11 appeals. 

12 The Supreme Court has consistently held that an 

13 analysis of Fourth Amendment issues involves "`an objective 

14 assessment of the officer's actions in light of the facts and 

15 circumstances confronting him at the time' and not on the 

16 officer's actual state of mind at the time the challenged action 

17 was taken." Maryland v. Macon, 472 U.S. 463, 470-71 (1985) 

18 (quoting Scott, 436 U.S. at 136); see Hawkins, 811 F.2d at 213-

19 14. "[T]he fact that the officer does not have the state of mind 

20 which is hypothecated by the reasons which provide the legal 

21 justification for the officer's action does not invalidate the 

22 action so long as the circumstances, viewed objectively, justify 

23 that action." Scott, 436 U.S. at 138; see United States v. 

24 Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (stating that 

25 the fact that customs officers boarding a ship pursuant to a 

26 statute authorizing a check of the vessel's documentation 

27 suspected that the vessel carried marijuana was not a violation 
11 

1 of the Fourth Amendment); Hawkins, 811 F.2d at 214 ("Both the 

2 Supreme Court and this court have held that a seizure that is 

3 valid based upon the stated purpose cannot be challenged on the 

4 grounds that the seizing officers were in fact motivated by an 

5 improper purpose."); see also Velasquez, 885 F.2d at 1081. We 

6 conclude that the authorization test incorporates this objective 

7 analysis. 

8 On the other hand, the usual police activities test 

9 applied by the district court is not a wholly objective test 

10 because it requires a reviewing court to examine the motivations 

11 and hopes of a police officer. See Mem. Op. at 9 ("The crux of 

12 [the would] test is an objective analysis of what a reasonable 

13 police officer would have done under the same circumstances 

14 absent any underlying improper purpose."). This approach would 

15 require a court to move past the objective facts and 

16 circumstances, i.e., the traffic violation, and attempt to 

17 ascertain an officer's true state of mind. 

18 In response to the government's argument seeking to 

19 have us apply the majority view, Defendant and amicus, ACLU, 

20 contend that the authorization standard will do nothing to 

21 restrain the arbitrary exercise of discretionary police power. 

22 See Defendant's Br. at 12; ACLU Br. at 11-14; see also United 

23 States v. Cannon, 29 F.3d 472, 474-75 (9th Cir. 1994) ("In the 

24 absence of some limit on police power to make such stops, 

25 thousands of everyday citizens who violate minor traffic 

26 regulations will be subject to unfettered police discretion as to 

27 whom to stop."); United States v. Guzman, 864 F.2d 1512, 1516 
12 

1 (10th Cir. 1988); 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE 

2 FOURTH AMENDMENT § 1.4(e), at 28 (Supp. 1995) (arguing that the 

3 authorization test has "conferred upon the police a virtual carte

4 blanche to stop people because of the color of their skin or for 

5 any other arbitrary reason"). 

6 However, the police are subject to a number of 

7 statutory and common law limitations. For example, officers 

8 cannot make a traffic stop without probable cause or a reasonable 

9 suspicion, based on articulable facts, that a traffic violation 

10 has occurred. See Prouse, 440 U.S. at 661; Velasquez, 885 F.2d at 

11 1081; see also 75 PA. CONS. STAT. ANN. § 6308(b). Thus, in 

12 evaluating the constitutionality of a traffic stop, a court is 

13 free to examine the sufficiency of the reasons for the stop as 

14 well as the officer's credibility. 

15 Furthermore, a traffic stop must be reasonably related 

16 in scope to the justification for the stop. See Berkemer v. 

17 McCarty, 468 U.S. 420, 439 (1984); Bloomfield, 40 F.3d at 915; 

18 Scopo, 19 F.3d at 785; United States v. Hassan El, 5 F.3d 726, 

19 731 (4th Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994). To 

20 justify a greater intrusion unrelated to the traffic stop, the 

21 totality of the circumstances known to the police officer must 

22 establish reasonable suspicion or probable cause to support the 

23 intrusion. See United States v. Ramos, 42 F.3d 1160, 1163 (8th 

24 Cir. 1994); United States v. Hernandez, 872 F. Supp. 1288, 1293-

25 94 (D. Del 1994). Clearly, a lawful traffic stop is not "carte 

26 blanche" for an officer to engage in other unjustified action. 
13 

1 In addition, the authorization test ensures that the 

2 validity of a traffic stop "is not subject to the vagaries of 

3 police departments' policies and procedures" concerning the kinds 

4 of traffic offenses which are enforced. Ferguson, 8 F.3d at 392; 

5 see Whren, 53 F.3d at 376; Scopo, 19 F.3d at 784. Therefore, the 

6 validity of a traffic stop should be evaluated on the officer's 

7 objective legal basis for the stop and not on whether the police 

8 department routinely enforces a particular traffic law or assigns 

9 a traffic officer to make such stops. It is not apparent why 

10 police officers should be precluded from making an otherwise 

11 valid traffic stop merely because by doing so they would be 

12 departing from some routine. 

13 We conclude that the district court erred in adopting 

14 and applying the usual police activities test rather than the 

15 authorization test in deciding that the basis for the vehicle 

16 stop was a pretext to search for drugs. In adopting the majority 

17 standard, we recognize that any rule governing this issue can be 

18 abused by the authorities. But, that concern is inherent in the 

19 nature of law enforcement. Based on the foregoing, we now 

20 examine Defendant's pretext argument in light of the standard we 

21 have adopted. 

22 We next consider whether we should go on and apply the 

23 standard we adopt to Defendant's pretext argument or remand it 

24 for resolution by the district court. Because the district court 

25 has already made the relevant factual findings, we will decide 

26 this issue. 
14 

1 As we have noted, the district court found that the 

2 trooper reasonably believed that Defendant's vehicle was in 

3 violation of the Pennsylvania Vehicle Code. See supra at 7. 

4 Applying the authorization test, we hold that the stop was not 

5 unconstitutionally pretextual under the Fourth Amendment because 

6 it was authorized under Pennsylvania law. See supra note 2. 

7 III. CONCLUSION

8 The suppression order of the district court will be 

9 vacated and Defendant's motion to suppress will be remanded to 

10 the district court to decide whether the subsequent consent and 

11 search were valid. 

12