2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

No. 03-1547

UNIT ED STA TES OFAMERI CA,

Appellant

v.
JERMANE E. BONNER

On Appeal from the United St ates

District Cou rt for the We stern D istrict of P enns ylvania (D.C. Crimi nal No. 02-cr -00046) Distri ct Judge: Hon. Gary L. Lancaster

Argued September 16, 2003

BEFO RE: MC KEE, SM ITH and CO W EN , Circuit

Judges
(Fil ed: March 30, 2004)
Mary Beth Buchanan, Esq. Bonnie R. Schlueter, Esq. (Argued) Office of United St ates Attorney 700 Grant Str eet Suite 400 Pitt sburgh, PA 15219
Counsel for Appell ant W. Penn Hackney, Esq. Karen S. Gerlac h, Esq. Lisa B. Fre eland, Esq. (Argued) Office of FederalPublic Defender 1001 Liberty Avenue 1450 Liberty Cente r Pitt sburgh, PA 15222
Counsel for Appell ee

OPI NION

CO W EN , Circuit

Judge

.
Jermane Bonner fled fr om police af tert he car i n which he was a passenger
was stopped for

a routi ne traf

fic vi olati on. The police gave chase and, upon apprehendi ng him, di scoveredthat he was ca rryi ng c rack cocai ne. The government prosecut ed Bonner for possessi on with the intent to dis tri bute 50 gr am s or more of crackcoc aine in v iolat ion of 2 1 U .S.C . § 841(a)( 1) an d ( b) (1 )( A) (ii i). The Distri ct C ourt supp ressed all evid ence seiz e d during the s top includ ing the drug s. This appeal bythe government followed.

In suppres s ing the e vidence, the Distri ct Co urt held that t he officer s lacked
a reaso nable , arti c ulablesuspici on that Bonner w as in vo lv ed in cr im in al a cti vi ty. The Distric t Cou rt reaso ned th at the so le basis for the s top was Bonner’s fl ight from police , and that

under Ill inois v. Wardlow , 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 570 (2000), and its progen y, mere fli ght when police appe ar on the sce ne is n ot suffici ent to estab lis h reasonab l e suspici on.

### 2

We will revers e. Under thefacts of this case we hold that the officer s had
reaso nable suspicion to stop Bon ner. Although fligh t alo ne is n ot eno ugh to justifya p olicestop, this is not a case of flight upon notici ng police

. The offic ers in this case were effec tuati ng a l egitim ate traf fic stop. D uring a traff ic stop, p oli c e officers m ay exerci se reasonabl e superi ntende n ce over the ve hicle, its driver, a nd passenger s. Because Bonner prevente d the poli ce from maintaining oversi ght and controlover the traffi c stop by fleei ng, we hold that thepolice had
re as onabl e s usp ic io n t o stop h im.

I

On M arch 8, 20 01, Officers Harbaugh, Eng lish, Stew art, and Sweeney
were in uniform and on dutyat thepolice
secu rity booth at t

he entrance to the Ohioview Acres housing project in St owe Town shi p , Pen nsylv ania . A t appr oxim ately 11:4 0 p.m., Office r Harbaugh notice d a sp orts utility ve hicle leavi ng the housi ng project that ha d one head light

out and an expi red ins pecti on sti cke r
. He signa led fo r the ve hicle to stop. The drive r , Nath an S tewa rt, complied. In ad dition to the driver, there
were two passengers: the driver’s brothe r, Ne il Stewart, in the ba ck seat and Jermane Bo nner in the f ront p assen ger se at.

As Officer Harbaugh ap p roached the driver ’s side o f the v ehic le , Bonner alighted an d ran. Offi cer Stewart chased after him on foo t , repeatedly yel ling for him to st op. Officer

English gavechas e in th e p atrolcar, driving i n the directi on Bonner was running, then parke d and contin ued th e cha se on foo t.

OfficerEnglish eve n t ually caught Bonner by t ack ling him. Bo th officers then s ubdue d and h andcu ffed B onner. Wh ile subduin g him, O fficer Eng lish observed a clear plastic bag in B onner’s hand. The bag contai ned seven gol f bal l si zed rocks, which were lat er tes ted and found to b e cr ack coc aine. The o fficers also seized $534. 25 from Bonner during the arre st.

The driver a nd other pas senger were told to put the ve hicle in par k, t urn off the igni tion, and step out of the vehicl e. Bo th were ha ndc uffed a nd detaine d for a bri ef pe ri od o f tim e, th en re le as ed wi th a citati on for the traffic viol ations.

We have juri s dicti on under 18 U.S .C. § 3731, and conduct plenary review of the Di stri ct Court’ s determinati on that the officers d id n ot hav e reaso nable suspici on to sto p B onn er. Ornelas v. U nitedStates , 517 U.S. 690, 116 S. Ct

. 1657, 134 L. E d. 2d 9 11 (1 996 ); United States v. Valentine , 232 F.3d 350 (3d Cir. 2000). We review the Dist rict Court’s findings of fa ct fo r clea r erro r. Ornelas , 517 U.S. at 698, 116 S. Ct. at 1663.

II

As a preli minarymatter , the governm ent challenges the Distri ct Co urt’ s findings that t

he area w as no t a hi gh c ri me area, and that

the hour of t

he stop, 11:4 0

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pm, was not signi ficant to the rea sona ble suspici on inquiry. In s uppor t of its contention that t

he Ohioview Acres housing project

was a high cri me area, the governments ub mitt ed a log book of
arres ts made at

the housing project over a three- year

period. A s the District Co urt found, the log book reflected that the r e was an averag e of 1.3 arr ests p er week, and that mos t of

the arrests were for
m isdemea nors and summ ary offense s
. Co nside rin g the number of peopl e who live in the housing proj ect, the Dist rict Co urt found that

this average r eflected neithe r a high cri me area nortraffic king in narcotics. The gov ernm ent co ntend s this finding wa s clearly erro neou s, and poin ts to a news arti cle as f

urther evidence of t

he level of crime p res ent

in t he area. Ev e n considering the new s article, howev er, the
e vid ence does not compelthe concl usion that the Dist rict Court erred in fi nding that the housing project wa s not a high c ri m e area. The Distri ct Court f ound that t

he stop di d oc cur

at11: 40 p .m. , but did not consider that f actor releva nt to its an alysis of whether the re was reasonabl e suspic ion for th e sto p. The evidenc e does not compel a differ ent concl us i on
. We conclude that t

he f a ct fi nding by the Dis trict C our t wa s no t clea rly erro neo us.

III

It is uncontested t

hat theinitial traffic stop was la wfu l u nder the F ourth Am endm ent. A police o ffi cer who observes a viola tion of state tr affic la ws may la wfully

stop the car committ

ing the violat ion. Pen nsylvan ia v . Mi mms , 434 U. S. 106, 109, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331 (1977). It i s also wel l settled that a police officer

executi ng such a stop may exerci se reas onable superintende nce over the car a nd its passenger s. Under Mimms , the offi cer may or d er the driver out of the vehi cl e without a n y parti culari zed sus picio n. Mimms , 434 U.S. at 110-11, 98 S. Ct . at 333. The Supreme Court exte nded that br ightline rule to a llow the of

ficer to order

any passeng ers out o f the ca r as w ell. Marylandv. Wilson , 519 U.S. 408, 117 S. Ct. 882 , 137 L. E d. 2d 41 (1 997). A lte rn ati ve ly, the officer m ay ord e r allof the occupants to r ema in in the c ar w ith their han ds u p. United States v. M oore field , 111 F. 3d 10 ( 3d C ir. 19 97)

. In addi tion , the officer

may pat down the
occu pants of the veh icle and c ond uct a search of the pa sseng er com partm ent, if he has a reasonabl e suspic ion that the
occu pants might be armed and dangerous. M ic higan v. Long , 463 U.S. 1032, 1049- 50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201 (1983) (pe rmitt

ing search of v ehicle during tra ffi c stop ); Mimms , 434 U.S. at 111-112, 98 S. Ct. at 334 (permitting pat dow n of dri ver upon reas on abl e suspicion); Terry v. Oh io , 392 U.S. 1, 17, 88 S. C t. 18 68, 1 877 , 20 L. Ed. 2d 889 (1968); M oore field , 111 F.3d at 13-14 (permit ting pat down of passenger upon reasonab le suspicion).

The gove rnm ent ass erts that t he policeofficer s ordere d Bonner an d the otheroccup ants to st ayin th e v eh ic le . A t the suppression hearing, how ever, there
was confli cting testi mony whethe r the

### 4

officers said anything bef ore B onne r ran. The Distric t Cou rt mad e no f inding with respect to wha t, if anything, the officers said bef ore B onn er go t out of the ve hicle and ran. We w ill assume for the purpose of this opinion that the offi cers di d not issue any comm ands be fore Bonner began
ru nn ing. Bu t even abse nt a sp ecific command, it is undisput ed that Bonner, an occupantof the stopped vehi cle, ran from the scene of a legitimate tr affic st o p withoutautho rizati on or consent of the officers. During such a stop, a pol ice office r ha s the au thority and duty to controlthe ve hicle an d its occupants, at leastfor a b rief pe riod o f ti me. 1 Bonner prevente d Offi cer

St ewart f ro m c ontro llin g the stop byrunning fr om the ve hicle before the purpose of the st op was even announced.

Under Terry v. O hio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) , and its progeny , an officer may conduct

a brief, investigatory stop when that of ficer has “a reasonabl e, arti culabl e suspic ion that crimina l activ ity is afoot .” Ill inois v. War dlow , 528 U.S . 119, 1 23, 12 0 S. C t. 673, 675 , 145 L. E d. 2d 570 (2000). Although reasonable suspicion is l ess deman ding than probabl e cause, the Fourt h Amendment does requi re that an officer making a stop hav e s ome level of objective justific ationfor that s top

. United States v. Sokolow , 4 90 U .S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (19 89). In evaluating wh ether a parti cu lar s top was justifie d, courts must look at the total ity

of the circumst ances surrounding t he stop. Sokolow , 490 U.S. at 8, 109 S. Ct. at 1586 (quoti ng United States v. Cortez , 449 U. S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d 6 21(198 1)). In effect

uating a valid s top , policeofficer s are al lo we d to use a
reaso nable am oun t of f orc e. Graham v. Connor , 490 U.S. 386, 10 9 S

. Ct. 1865, 104 L. Ed. 2d 4 43 (198 9). Bo nner a rgue s that flight , st anding al one, is not suffici ent to engender re asonable s uspici on on the part of a polic e officer . Indeed, the Supreme Court has never hel d th at
un p rovoked flight a lone is e nou gh to justify a stop. The Supreme Court has he l d, however, that fli ght upon noti cing police , plus some other indi cia of wrongdoing, can c onstitu te reaso nable suspici on. Wardlow , 528 U .S. at 125-26, 120 S. Ct. at 676-77. The “plus” fa ctor
was Ward lo w’s me re presence i n an area kno wn for high narcotic s tra fficki ng. Wardlow , 528 U.S . at 12 4, 120 S. Ct. at 676. In ho lding th at fligh t plus p resen ce in
a high crime area ju stified th e stop, the 1 The Supreme Court has never addresse d the question of w hether, during
a lawf ul traff ic stop, th e polic e cou ld detain any passenge rs for the entire durati on of the st op. Ind eed , the Court explic itly left that q uestio n open wh en it held that the police cou ld order passe ngers out of th e ca r du ring a sto p. M ar yl and v. Wilson , 519 U.S. 408, 415 n. 3, 117 S. C t. 882, 886 n. 3, 137 L . Ed. 2d 41 (1997). That ques tio n is not

before us, as Bonner fled befo re the p urpo se of the sto p was announced, and b efore the po lice co uld exercise the ini tialcontrolauthori zed by Wilson and other cases.

### 5

Cou rt expl a ined, “the determination of
reaso nable suspici on must be based on
commonsens e judgments and i nferences about human behavior. ” Wa rdlo w , 5 28 U.S. at 125, 120 S. Ct. at 676.

In Wardlow , ei ght offi ce rs in a four-car carava n converged o n a neighborhoodknow n for high narc o tics traffi cking. Upon arrivi ng in th e a re a, two of the offi cers noticed the d efe ndant standi ng near a bui lding, holding a ba g. The defendant l ooked in thedirect ion o f the officers a nd th en f led. Wardlow , 528 U.S. at 122 , 120 S . Ct. at 6 75. Befo re he ran, the officers had no reaso n to s uspect the defendant of

any wrongdoi ng, and had
no legit imate caus e to detai n him; the defendantsimp ly fled fro m the poss ibility of a consensualencounter with the pol ice.

Me re presence in an are a known for high crime does not give ris e to rea sona ble suspici on for a stop

. Brown v. Texas , 443 U.S. 47, 5 2, 9 9 S . Ct . 26 37, 2641, 61 L. Ed. 2d 357 (1979) . P oliceofficer s may approach individ uals w ithout re ason able susp ic ion or probabl e cause, and may qu esti on such indi viduals withou t impli cati ng the Fourt h Amendmen t

. Flori da v. Royer , 460 U .S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983). An individualappr oac hed in this
manner “need notanswer any questi on put to him; in deed , he m ay declin e to listen to the qu es tions at a ll and m ay go on his
wa y.” Royer , 460 U .S. at 49 8, 103 S. C t. at 1324 (citing Terry v. O hio , 3 92 U .S. 1, 32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed. 2d 889 (19 68) (H arlan , J

. concu rring); Terry , 392 U.S. at 34, 88 S. Ct. at 1886 (White, J. conc ur ring )). M ore ove r, a refusalt o cooperat e with thepolice in a
consen s ual encounter , without more, cannotcons titute reas onab le suspici on for
a stop

. F lori da v. Bosti ck , 501 U.S. 429, 437 , 111 S . Ct. 2382, 2387, 115 L. Ed. 2d 389 (19 91) (citations om itted).

I n this cas e, how ever, B onn er did not simplyflee upon “noticing” police , nor did he simp ly refuse to coop erate during a consensualencounter . Bonner fl ed fr om a lawful traffi c stop, before the officers had the chan ce to announce the pur pose of the st op. He contin ued f leeing desp ite repeat ed orde rs to stop, and he did not stop
r u nning untilhe was tackl ed by Offic er English. Bo n ner’s f

light from a lawful policetraffi c stop, w here that fli ght p revente d the poli ce from di schargi ng thei r duty of maintai ning ov e rsight and control
over the traf fic stop, provided the officers with reasonabl e suspic ion t o stop Bonner for further

investigati on. Fli ght fr o m a non -con sensu al, legitima te traff ic stop ( in which the offi cers are autho rized to exert superi ntendence and controlover the
occu pants of the car) give s rise to reasonabl e suspic ion.

IV
By reaso n of Bo nner ’s fligh t in the
course of a le gitima te traff ic sto p , the officers h ad reasonabl e suspic ion to s top hi m. Upon effectuat

ing the s top the drugs
were reveal ed, gi ving prob able caus e to arrest. The judgment of t he District

Cou rt entere d on F eb ru ary 12, 200 3, wi ll be

### 6

revers ed. The c ase w ill be rem ande d to th e Di stri ct Court f

or further procee dings consistent with t

his opi nion.

United Stat

es v. Bonner , No. 03-1547 Sm ith, Concurring

. Because I agree th at“fl ig htfr om a non -con sensu al, legitima te traff ic stop ( in which the offi cers are a utho rized to exert superi ntendence and controlover the
occu pants of t he ca r) give s rise to
re aso nable suspici on,” I j oin Judge Cow en’s opinion i n full. Maj. op . at 5. I write s eparat elyonly to highl ight an i ssue implic at ed in the D istrict Co urt’s fa ctfinding which we have not bee n req uired to address: whether under t he flight “plus”
ana lysis of Wardlow , 528 U.S. 119, the governmentis re quired t o prove the existe nce of objective cri teri a for what
cons ti tutes a high cri me area and that the stop occurred i n such an area, or rather that the government i s requi red to p rove that officers effecti ng the st op had a reaso nable articulab le basis to belie v e t hat they were in a “h ig h crime area .” 2 I point this out because I believe these alte rnati ves require

the Di strict Court to conduc t fun dam entally diffe rent inq uir i es, even th o ugh the evi dence offered f or both may be ov erlapp ing o r even identic al. Here, the Dist

rict Court found th at

“ the government has not shown by a preponderanc e of the evide nce th at O hio View Acres is s uch an area. ” A fte r reviewing the rel evant evi dence, t he Distri ct Court dec la red that evidence “hard ly makes Ohio View Acres a hea v y crime and narcotic s tra fficki ng area. ” What I am concerned about in these Wardlow -type case s is the fact-finder’s focus: s hould it

be that of a federaljudge, operati ng with in the confi nes of a
cou rt ro om, who belie ves the area to be one of high cr ime, or that

of a poli ce officer who, based on experie nce and an
awareness of cri me and arres t data , had a

2 Judg e Co we n des cribes this factor as whether the area was a “hi gh c ri me area .” M aj. op. at2. Th e Dist rict Court’s analysi s, however, was more limi ted and addresse d only whether thi s was a “hi gh
n arcoti cs trafficking area .” As there a re many cr ime s w hich do not i nvolve narcoti cs traffi cking, an areacould be one i n wh ic h there i s a high vol ume of crime, but do es not quali fy as a “high nar cotic s traffi cking area.” Because the test sho uld be the same for eit her analysis, howe ver, the distincti on is not

materi al for pur

poses of this concurrence. For purpose s of
con tin ui ty, then, I adopt Ju dge C owe n’s arti culation of the qu estion–w hether t h e area wa s a “ hig h cr ime area .”

### 7

basis to f

or m a reaso nable articulab le belie f that i t is such an area? 3 O bv io us ly, the diffe rence s in fo cus a re no t only differe nces of experi ence and pers pecti ve. A judg e eng aged in adju dicativ e fac tfinding w ill apply stan dard s of c redibility and proof that

differ f rom the co gniti ve processe s of an officer

acti ng in the f

iel d

.

Th e touchst one of Terry v. Ohio is its requirement tha t a court cons ider whether “the fact s ava ila ble to t he officer at the moment of

the sei zure orthe search ‘warrant a ma n of reaso nable cautio n in the belief’ t hat t he acti on taken was approp ri ate[.]” 392 U.S. at 21- 22 (1968) (citing Carroll v . Unite d States , 267 U. S. 132 (192 5); Bec k v. O hio , 379 U. S. 89, 96- 97 (19 64) ). As exp la in ed b y th e Su pr eme Cou rt in United Stat

es v. Cortez , 449 U.S. 411, 418 ( 19 81), an off

icer’ s suspi cion that criminal acti vity

is afoot may be informed by “various objec ti ve observations , inf ormationfrom polic e report s, i f such a r e avail able, and consider ation of the modes
or patte rns of

operati on of

certain kinds of lawbreakers. F rom these dat a, a t rained officer draws infer ences and makes deducti ons–infer ences and dedu c tions that mightwe ll elude an un tr a ined per son .” See also United States v. Arvizu , 534 U.S. 266, 274 (2002 ) (of

ficer s may “dr aw on their own experience and s pecial ized tr a ining to make inferences from and dedu cti ons abou t the cu mu lativ e information avail able t o t hem that mi ght
we ll elude an unt

rained pe rson. ”) (i nternal quotati on mar ks om itted); Ornelas v. United States , 517 U.S. 690, 699 (1996) (revi ewing court must give the ap prop riate weight to factual inf

erences dr awn by l ocal law enforce ment of ficers). In t he s ame w ay, an officer is i n th e position to know the routines and p atterns o f a ge ogra phic area, and w hethe r it is mor e pro ne to crime. This know le dge may not be refle cted on ar rest reco rds an d lo g sheets,
as arrests are not the only indic ia of crime. In any case, we need not resol ve the i ssue here.
I agree that the evidence offered by the gov ernm ent d oes not compel t he
conc lusion that the Distric t Cou rt erred in fi nding that Ohio Vie w Acres was not a high crime ar ea. And ev en if the Distri ct Cou rt were required to det ermine whether the officer s had a reas onab le articula ble basis to beli eve it

was a high cri me area, such a findi ng wo uld contrib ute no thing to the result here because the government has demonstrated fl i ght “plus ” by ot her evidentiarymeans. Fi na lly, although Ijoin J udge Cowen in rever sing th e D istrict Co urt, I echo the s en timent s of Judge McKee expr essed in Pa rt III of h is dissen t. It should be a r are occas ion when judges criticiz e, and there by i ntrude into , a legitima te exerci se of prose cu t oria l discr etion. N or shou ld w e rou tinely 3 Wardlow did not reso lv e this issue bec ause it appe ars that in t hat case t her e w as no disput e that

the st op took plac e i n a h igh crime area. In the case before us, the Distri ct Court di d conf ront a factual disput e on this issue.

### 8

questi on in our opi nions the polic y decisi ons of Congress t o feder aliz e what has traditionally been state law stre e t crime. O u r institution al role a s judg es is limi ted by our

juri sdiction a nd by the
com ity and respect

we owe to co ordi nate bran ches of g over nm ent. That being said, the i nstant case prese nts a seri es of e vents which the d issent characterizes as a prosecuto ri a l “sw itche roo .” I cannotdisagr ee with that ch a racte rizat

ion, and I share the “conc ern for the appear ance of fairness” exp ressed by Judge McKee. It i s one thi ng for t he governmentto assume an i nvesti gation init iate d by st ate l aw enforcemen t officials, o r even to a dopt a pros ecuti on commence d by state pro secu tors. It is quite another to seek a feder al indi ctment whe re the federal interest in the ca se is recogniz ed only after

state prosecuto rs have given the ca se th eir be st shot in the state courts and lost

on an iss ue of state la w. Not only does such a t acti c offend fundamental notion s of f airnes s, it is contra ry to tr aditi onal noti ons of our fed er al is m.

U.S. v. Bonner, No. 03- 1547
M cK ee, Dissenti ng I mu st respe ctfully dissent, because I belie ve the majo rity’s analysis is inconsi stent

with Terr y v. O hio , 392 U. S. 1 (1968), and Illinois v. W ardlo w , 5 28 U.S. 119 (2000 ). Altho ugh I view this
case a bit di fferently than thedistrict co urt, I nev er th el es s c onc lu de t hat Supreme Cou rt precedent compels us t o affirm the dist rict court’ s order s uppressi ng t he evidence t hat was seized i n this case. Mo reover, al tho ugh I do not t hink the circumst ances here est ablis h a Terry stop, I do agree that w e mu st beg in our a nalysis with the S upre me C ourt’s d ecision in Terry

. I. Terr y v. O hio
In Terry , the S upre me C ourt h eld t hat a polic e officer

may approa ch a n indivi dual “for pu rposes of i nvesti gating poss ibly c ri minal behavi or even though there is no pro bable caus e to make an
arre st,” and brief

ly detai n him/her i n order to fulfi ll “[ a] legi timat e investigati ve functi on [.]” 392 U. S. at 22. The policeoffice r in Terry approached an d brie fl y de ta in ed two individ uals aft er ob servin g their s uspic iou s behavior from a dist ance and conc luding that theywere casing astore that they were about to b urg lariz e. The Terry Co urt held that the Fourt

h Amendmen t allowed the officer to brief ly detain th em in orde r to conducta brief inves tigation in t o their suspici ous behavior. Since th e individuals’ acti ons also s uggested t hat t he y might be armed, the Court also concluded that the Fou rt h Amendment allowed the of ficer “ to con duct a caref ully lim itedsearch of the outer c lothing . . . in
an atte mpt to di scov er weapons which mightbe used to assa ult [the offi cer]. ” Id

. at 30. T he C ourt ex plaine d: The acti ons of [th e defendants] were consistent with the offic er’s hypo thesis

### 9 th a t these me n we re conte m plati n g a dayl ightrobbery - - whi ch, it i s rea sonabl e t o assume, would be likely to invol ve the
use of w eap ons - - and noth ing in th eir conductfrom the ti me he firs t noti ced them u nt ilth e t ime he confronte d them and identif i e d hims elf as a poli ce officergave h i m suffici ent reaso n to nega t e t h a t hypothesis.

Id . at 28. Th erefore, “unde r Terry v. Oh io an d subsequent

ca se s, ‘ an of fic er m ay, consistent with the Fourth Amendmen t , conducta brief, investigatory sto p if the officer has a reas onable, arti cu l able suspici on that c riminalac tivi ty is afoot.’” United Statesv. Valentine , 232 F.3d 350, 353 (3d C ir . 2000) ( internal ci tati on omitted). The S upr eme C ourt has expla ined th at: Rea sona ble suspicion is a less demanding stand a rd than prob able cause not o nly in the sens e that

reas on able suspici on can be est ablis hed with inform ation th at is differe nt in quanti ty or content than that requ ired to
es tablish pr obable caus e, but
a lso in the se nse th a t
reaso nable suspici on can arise from information that is less reliable than that required to sho w p roba ble
cause.

Id

. (inte rnal quot ation marks omitted) (quoti ng Alab am a v. W hite , 496 U.S. 325, 330 (1990) ). According ly, absent prob able cause, an indivi dual’s det en tion must be supporte d by “reaso nable , articulab le suspici on that c rimi nal a ctivi ty is afo ot.” Illinois v. Ward lo w, 528 U.S. 119, 123 (2000). However, Bonner was “detai ned” after the ve hicle he was ridi ng in was stopped for a tra ffic i nfraction, and the Supreme Co urt has allo w ed great er latit ude in the context of traffic stops. A. Terry appli ed to t raff ic s tops Terr y was first

impli cated i n the context of a la wf ul tr affic stop in Pen nsylv an ia v. Mimms , 434 U.S. 106 (1977). T here, a police offic er lega lly stopped a car fo r a tr affic vi olati on and orderedthe dri ve r to get out . The offic er was no t m ot iv ate d b y an y p arti culari zed suspici on in doing s o; rat her , i t was the officer’s policy to o rder d rivers o ut of th eir cars “as a matter

of course whenever t

hey had bee n sto ppe d fo r a tra ffic vio latio n.” Id. at 109-10. Once the d river was out of the car, t he officer

notice d a b ulge under the driver ’s ja c k et and the officer im me diately conducted a “pat-down” search because he bel ieved the bulge was

### 10

a we apo n. Id. at 111-12. As a result of that search, a gun was seized, and the defendant was thereaft er arrested. The Supreme C o urt held that the
se arch did not vi olatethe Fou rt h Am endm ent. The Court reas oned that consider ations of safety justifie d allowing policeto ord er driv ers to get ou t of the ir vehicl es durin g l awful tra ffic stops be ca use weapons could be conceal ed insi de the vehi cle i n easy reach of t he dr iver. Since poli ce could l awfullyorder the driver

out of the veh icle, the Court concluded that, under Terry , t he officer
was “j usti fied i n conducti ng a limi ted search for w eapo ns on ce he had r easo nably concluded t hat theperson whom he had legitima tely stopped might be ar med and presently dangerous. ” Id

. The Court exte nded the rul e of Mimms to inc lud e pas seng ers of lawf ully stopped vehicl es in Marylan d v. Wilson , 519 U.S. 40 8 (1997 ). There, as in Mimms , a traf fic violatio n crea ted the grou nds to legally stop an au tomobil e. The poli ce orderedthe passen ger out of the car a s a precaution, not because of a ny suspici on of ille ga lity. The Wilson Co u rt had no diffic ulty con cl udi ng that th e s ame co nsider ations of safety present whe n drivers are ordered to get out of a stopped vehicl e outweighed the minimal i ntrusi on on any pas senger who is ordered out of a car t hat has bee n legally stopped fo r a traffic infr actio n. Id

. at 414. The Wilson Cou rt found that, “as a prac tica l matt er, t he passeng er s are al readystopped bythe virt ue of the sto p of th e vehicl e,” and t he orderto get out of the car creat es on ly a minimal additi onal intru sion

. Id . at 413-14. I n a ddition, “the fact that there is more than one occupant of t

he vehic le increa ses the possibl e sources of harm to the off icer.” Moreover , “the motivation of a passenger

to em ploy viole n ce to pre vent apprehensi on
. . . is everybit as great a s that of the dri ver.” Id. at 414. B. Bonner w as not detai ned under

Terry
T he maj or ity ’s ana ly si s a ss ume s that we are confront ed with a Terry stop, and the dis tri ct court

ulti matelyanaly zed the detention un der Terry

. How ever, after reviewing the tr anscri pt of the suppress ion hearing, it

is cl ear to me that the poli ce officers who “stopped” B onne r were not basing the ir act

ions on anyreasonabl e, articulab le suspici on as is requ ire d under Terry

. The y certain ly never w ere ab le to expla in their

co ndu ct byestabl ishi ng any such suspici on de s pite having e very opp ortun ity t o d o so d uring th e suppress ion hearin g. I think it telling tha t, at the very

beginning of

the suppr es si on hearing, the district court a sked the governmentif Bon ner wa s searc hed p ursuant to a Terry stop. The c our t inquired: “I understand that thi s is a warrantl ess search; is that a Terr y v. O hio
search ?” App . at 127. The govern ment’s respon se did not conf irm a Terry stop. Rather, coun sel stated : “Th is was a search incide nt to ar

rest .” Id

. It is not su rprising th at the governmentdid not argue Ter r y initially because the te sti mony that the government produced at thes u ppre ssion h earing did

### 11

not establ ish a Terry stop

. Rather, the testimony wa s con sistent w i th, but f ell short of establ ishi ng, a search incide nt to a valid arrest. The se izure can not be justifie d on that ba sis bec ause the test imo ny failed to estab lish pro bable
cause for an arre st other than m ere flig ht. See United Stat

es v. Myers , 308 F.3d 251, 265-66 (3d Cir. 200 2). 4
When Officer English was ask e d why he chased Bon ner he resp on ded: “They were exiting a high c rime are a , kno wn traffi cking (s ic), and the officers informed the Defendant to st op an d get bac k into t

he vehicl e, and he fai led t o com ply with the off icer’ s ord ers.” App. at 148. However, the di stri ct court rejec ted the testimony that Bon ner w as ordered back into t

he ca r as well as the o fficer’s testimony abo uta “h ig h crime area” or one kno wn for “n arcotic s traffic kin g.” Id . at 17. 5 We reverse the dist rict court’ s factua l finding s only w hen th ey are clea rly

erro ne ous, i.e. wh en the y are “co mp letely devo id of

a credibl e evidentiarybasis or

4 Despite i ts i niti al inquiry i nto a search inci den t to arres t, the district c ourt d id base its ruli ng on Terry . App. at 18-19 (“Bonner ’ s flight a lone is in suff icient to create a reasonabl e arti culabl e suspic ion that he was involved i n criminal activ ity. .

. . Because t

his court finds that t he governmentfail ed to meet i ts burde n of show in g Bo nner’s s top was supported by
a reasonabl e arti cu lab le suspi cion of criminal conduct, the st op and sei zur e violated Bonne r’ s Fourth Amendment righ ts.”).

5 In his c on curr ing opini on, Judge Sm ith correctly not es the dis tinct ion between establish ing tha t an are a is a “high

crime area” vers us establis hing an offi cer ’ s good fa ith belie f that

it i s one. Ido not suggest that t

he dist rict court was cor

rect to the ext ent that it required the governmentto prov e that the area is actua lly “a hi gh cr im e a re a” by a preponderanc e of the evid ence. Ra ther, the inquiry must

be the subj ecti ve beli ef of the arrest ing o fficer . However, i t is clear under Terry that the subjective belief must be object ivelyreas ona ble. H ill v

. Ca lifornia , 401 U.S. 797 (1971) . Absent
more than was offered at the suppressi o n hearing, the district court’s inquiry und ermin e d the objective reasonableness of any s ubjective bel ief that the area in questi on was a “high crime” area orkno wn for “narcot

ics t raffic king.” Mor eover, I thi nk that t he requirement of

an objec tively reaso nable belie f addresses J ud ge Sm ith’s concern that su ch d etermi nations are bei ng made by judges i n the c om fort of their
cou rt ro oms rather

than byoffice rs in the streets. See Concurring Op. at 2. Although properdefe rence mu st be a fforded to t he trai ning, experie nce, and k nowledge of po lice officer s, as well as t he try ing circum stances facin g th em, th e Constit ution does not allo w u s to ab dicate
our respo nsibilities in favo r of the ir judgm e nts simplybecause we ar e operati ng within t

he com fortab le confines of a cou rtroo m o r ap pella te ch am ber s.

### 12

bear no rati onal rel ations hip to t he supporti ng data .” 6 Here , the dis tri ct court’s fi ndi ngs o f fac t are clea rly sup por ted b y the re cor d. There was conflic ting testi mony about whether the offic ers said anything to B onner before he ran, and the cour t di scr edite d the of ficers’ c onf lictin g testimony that t hey d id. Id . at 15. Thus, as Judge Sm ith sum mariz es in his concurri ng opinion, the is sue before us may be distill ed as w hethe r “fli ght from a noncons ensu al, legitima te tr affic stop . . . [by its elf] gives rise to reas ona ble s usp icion .” See C onc urrin g O p. at 1 , and M aj. O p. a t 9.
Bonner was chased, t ackled a n d handcuffed simp ly bec aus e he ran
. Tha t is abso lutely cons istent w ith O ffice r English’s testimo ny at t he suppress ion hearing. Officer Engl ish was asked t he following q u estion: “[T]h e reason M r. Bonner was being chased was because he starte d ru nning, c orrect ?” The officer responded: “That’s t

he reason t

he ini tial chase wa s star ted, I belie ve.” App. at 153. OfficerEnglish des cribed t he stop as follows:
I e ventu ally caug ht up with the Defendant, and w e f ell to the gr oun d. . . . The Defendant contin ue d to try to get up away from me . I ha d him in a gra sp around the wa is t; he co ntinue d to try to get up and get away from me.
. . . I informed hi m numerous ti mes to plac e his hands behind hi s back and quit resist

ing. Ap p. at 149. The offic er was then as ked whether or notit wa s nec essary to f orcibly place Bonner’s hands be hind his back and OfficerEnglish conf

irmed that he wa s able “to subd ue the De fend ant” to gethe r with OfficerSw een ey an d O ffic er S tew art. Id

. Therefore, the distri ct cour t was quite correct in st ating: “The only pe rtin ent factor is Bonner’ s fli ght.” App. at 18. The majori ty states that Officer English observed a plastic bag in B onner’s hand “[w]hile subduing him.” Maj. Op. at 4. H owe ver, O ffice r Eng lish actu ally stated that he did n ot see th e bag until after Bonner had been handcuffed

. Officer English stated that

after he wa s finally ab le to subdue Bon ner, the officers discovered that “he wa s clu tchin g a p lastic bag gie. . .”. App. at149. The other offi cer, Offi cer Stew art, was never a sked when h e first
saw the ba ggie that Bonner was clutc hing. The only relevant tes timonyon this record is Eng lish’s testi mony that he notice d the bag after Bonner was su bdued , not before
or while he was bei ng subdued. Offic er Stewa rt testifie d that he saw Officer En g lish take som ething out o f Bon ner’s hand “[a]fter he was in handcuffs. ” App. at 136.

“ It is the state’s burde n t o demonstrate that the seizur e it seek s to 6 United Stat

es v. Taf tsi ou , 144 F. 3 d 287, 293 ( 3 d C ir. 1998 ); see also United Statesv. Perez , 280 F .3d 318, 33 6 (3d C ir. 2002).

### 13

justifyon the ba sis of th e reaso nable suspici on wa s suff iciently limi ted in s cope and durati on to satisfythe conditi ons of an inves t igati ve seizure.” Florida v. Royer , 460 U.S . 491 , 500 (19 83)

. T e rry , li ke Mimm s an d Wilson , recogni zed that officers who briefly

detai n indivi duals for investigati on base d up on ar ticulab le susp ic ion need to protect themselves and tha t concerns for

the safe ty of the offi cer and others justifycer t ain li mited steps consistent wit h th at co nce rn. Th e Terry Court explained: [ W]e c an no t blin d oursel ves to the ne ed for law enfor cement officers t o protect themselves and ot her prospect ive vi ctims o f violenc e in situations wh ere theym a y lack pro bable
cause for an a rr est. When
an officer i s justified in belie ving that an indivi dual whose suspici ous behavior he is investi gating at close range is armed an d dangerous to the of

ficer or to others , itwould appearto be clearly un reaso nable to deny the offi cer the p o wer to take n ecess ary reaso nable
measur es to de termin e whether the pers on is in fact carry ing a we apon and to neutral ize the threa t of phy si calharm. 39 2 U. S. at 24. Ne vertheless, the C ourt remained cogn iz an t of “the nature and quality of the intrusio n” of th e person detai ned. Id . It

concluded that the autho rity conferred on the Fourt h Amendment for a bri ef det e ntion must be “narro wly draw n. . . to perm it a reaso nable search for weapons fo r the pr otection of the police offic e r, wh ere he has re ason to belie ve that heis deal ing with anar me d
an d dangerous i ndividual , regardless of whether he has probable c ause to ar rest the indivi dual for t

he crime. ” Id . at 27. Thus, “[t]he manner in which t he seizure and search were conducted is .

. . as vital a part of the inquiry as whe ther they were warranted at all .” Id. at 28. As n oted above, the Mimms Cou rt held that pol ice may order the dri ver of a lawf ully stopped automobile t o step out of the car for t

he officer ’s own protec tion, stating that “ a signi ficant percent age of murde rs of polic e officer s occurs when the officers are making t

raff ic s tops .” 43 4 U.S. 106, 110 (1977) (i nternalcitation and quotati on ma rks o mitte d). The dang er is reduced with only min imal add iti onal intr usion by allow ing o ffice rs to “c ontro l” the situation to the ext ent of orde ring
occu pants out of the car. “ Establi shi n g a face-t o- f ace confrontation di minishes the po ss ib ilit y, otherw ise sub stantial, tha t t h e driv er,” o r passenge r, “ca n mak e unobserved movements; this, in turn, reduces the likelihoodthat the offic er w ill be the vic tim of an as sault .” Id . “The risk of harm to both the policeand the
occu pants is minimized if the officers routine ly exerci se unquestioned command

### 14

of the situa tio n.” Michigan v. Sum mers , 452 U.S. 692, 702- 03 (19 81 ) (i nternal citation omitted). 7
How ever, my coll eagues have
severe d the rul e from it s analytica l moorings. They are app lying the rule here
even though the pol ice di d not even atte mpt to expla in their a ctions in terms of any percei ved threat from Bonn er getti ng o ut of the car

and any danger aros e fr o m chasing, tackl ing, and subdu in g an occu pant of

a s to ppe d ve hi cl e wh o wa s mere ly trying t o lea ve. Of cou rse, I do not
mean to sug gest tha t flight n ecess arily elimi nates the danger the Court was concerned with in Terry , Mimms or Wilson

. Ho w ever, I th ink it a stre tch to equa te law enforcement ’s need t o control
a driver or passenge r with t

he officers’ need to control B onner h e re. Offi cer English clearly testifie d that Bo nner was chased and handcuffed becaus e he ran away from a stopped car. No other justific ationis off er ed, exc ept by my col leagues. Ac cord ingly, I believ e th i s seizure can o nly stand onl y i f it c an be justifie d as a searc h inci dent to a valid
wa rrantless arrest. The government no doub t reali zed this and theref ore, as e xplain ed ab ove, to ld th e su ppre ssion c ourt tha t was precis ely the jus tifi cati on for the search. H owe ver, absentprob able cause to arrest Bonner, the
sea rch can not be sus taine d as a sear ch incide nt to an arre st. United Stat es v. Myers , 308 F .3d 251, 26 5-66 (3d Cir. 2002). M oreover, even if we view thi s as a Terry stop, I would sti ll conc lude that the dist rict court’s s up pressi on order was
corr e ct beca use th ere is n othing to establish reaso nable sus picion bu t Bo nne r’s f ligh t. In add ition , as noted above, the scope and durati on of t he detention authori zed under Terry must be consi stent with the art

iculab le suspici on underly ing the deten tion; t hat is the sine qua non of Terry. It i s the basi s for el iminating the requirement o f

probab le cause be fore detai ning som eone . As th e Co urt stated in Florida v . R oyer , 460 U.S. 491, 500 (1983), “an investigati ve detention must be tem po rary and la st no lo nger than is necessary to effect

uate the purpose of t

he stop. Si m ila rly, the inve sti gativemethods employe d should be t he least intr usive
m eans re as on ab ly av ail ab le t o v er ify th e officer’s susp icions in a sho rt perio d o f tim e.” Terry does not aut horize pol ice t o chase , tackl e and handcuff one who runs away from the m b ased solely on f light. Mo reover, I do notbelie ve other precedent
can sup por t that leve l of in trusi on e ither

. II. Detent ion Base d on Fli ght Alone
To determi ne if Bonner was l egitim ately detai ned based sol elyon h i s flight, we mu st exa min e t wo Sup re me Cou rt cases r egarding an indivi dual’s right 7 In Un ited Sta tes v. M oore fi eld , 11 1 F.3d 10, 12-13 (3 d Ci r. 199 7) , w e held that policecould order

a passenger

in a lawf ully stopped car to re main inside w ith his/ he r hands in t

he air ba sed upon the
sa me consider ations of safe t y r elie d upon in Mimms and Wilson

.

### 15

to walk away from po lice officers; Florida
v. Royer , 460 U.S. 491 ( 1983) , and Illinois v. Wardlow , 528 U .S. 119 (200 0).

A. Florida v. Royer
In Royer , the Suprem e C ourt h eld that there is n o ob ligation to sub mit to inquiries when approached by police . The Cou rt also hel d that refusal to subm it to policequesti oning o r cooperat e with a policeinqu iry does n ot, with out m o re, fu rnish the neces sary grounds fo r dete ntio n. 46 0 U .S. at 497 -98

. Prior to Ter r y v. Ohi o [] , a ny restraint

on the pers on amounting to a seizure f or the purposes of t

he F ourth Amendment wa s inva lid unless ju sti fie d b y pr obab le
ca u se. Terry creat ed a limi ted excepti on to thi s general rule: search and seizures a re justi fiabl e under the Four t h A men dm ent if there is articul able sus picion that a person has committ ed
o r i s abo ut to co mm it a crim e.

Id . at 498 (citations om itted). Thus, the Royer Court rei nforced the factthat

Terry did not create a li cense to detai n for inves tigat

ion i n the absenc e o f articulab le susp icion. T he C ourt als o stre ssed that “ [d]ete ntion s m ay b e ‘inves tigat

ive’ yet violativ e of th e Fo urth Amendment absent pr obable caus e.” Id

. at 49 9. “ In the name of i nvesti gating a person wh o is no more than sus pected of crimina l activit

y, the police ma y not carry out a full search of t

he person.

. . . Nor may the po lice see k to v erify their suspici ons by means t hat approa ch the conditi ons of

arre st.” Id . (ci ting Dunaway
v. New Y ork , 4 42 U.S. 200, 207- 09 (1979)). The majo rity notes t

hat Bonner was the occupant of a s topped vehi cle who “ran from the scene o f a le giti mate tr affic stop without authorizati on or consent of the of fice rs,” and assume that analy sis under Mimms and Wilson is app ropria te. M aj. Op

. at 6 (emp hasis adde d). How ever, under Royer , itis irr elevant that Bonner left the vehi cle without the police officers’ auth oriz ation

. Royerdid not condi tion an individual’s rig ht to go on his/ her way on fi rst o btainin g po lice pe rmissio n. In fa ct, conditi oning the ri ght to l eave a poli ce i nquiry on the st

reet on obt aining “a uth orizat

ion or co nsen t” wo uld tota lly nega te Roy e r ’s hold ing. A s the m ajority
correc tly notes , a refu sal to coop erate with the police in a con sensual en counter, without mo re, can not co nstitu t e reaso nable sus picio n fo r a sto p. M aj . Op. at 9 (quoti ng Florida v. Bostick , 50 1 U.S. 429, 437 (1991)). The di ff icu lty w ith an alyz in g this
case stems no t fro m Royerbut from Illinois v. Wardlow , 528 U. S. 119 (20 00). The Court’ s l ang uag e there creates som e tensi on with it s prior

holding i n Royer
even though the Ward lo w Court was carefulto explic itly reaff irm the hold ing in Royer

.

### 16 B. Ill inois v . Wardlow
In War dlow , the Court held t hat policeproperl y condu ct ed a Terry stop of
an indivi dual who fled after looki ng in the direct ion of an approachi ng policecaravan in “an a rea known for heavynarcoti cs t raff ickin g.” 528 U .S. at 121. The Cou rt summarized Royera s holding “t hat when
an officer , without

reaso nable suspici on or prob able cause, approaches an ind ividua l,
an individ ual ha s a righ t to ig n ore the policeand go about his b usin ess. ” Id . at 125. However, the C our t als o noted that flight is one of t

he circumst ances that must be considered under Terry

. Id . In d oin g so, however, theCourt rei terated that “any refusalto c oop erate , without more, does not furnis h the mini mal levelof objective justific ationneeded for a detention or seiz ure .” Id . (q u oting Florida v. Bostick , 501 U.S . 429 , 437 (19 91) ).
A clos e re ading of the Cou rt’s opinion in Wardlow resol ves any apparent tens ion

. It was not

Wardlow’s fli ght that justifie d his detent ion

. Rather, it was flig ht in co nt ex t wi th the ot he r circumst anc es in that c ase . Th e circumst ances include d the fact that police were “patr olli ng an ar eakno wn for heavy narcoti cs tra fficki ng.” Id . at 121 . In fac t, the policewere trave ling i n a caravan “because theyexpected to find a cr owd of peop le in the are a, i ncluding lookouts and [drug] customers .” Id . As the pol ice
caravan ap pr oa ch ed War dl ow, policesaw him look at t

hem and run, holding a ba g as he fled

. Give n the c ontex t, police c ould reasonab ly conclude that he was a drug dealer, purchase r, or lo oko ut. Under those circumst an ces, allow ing o ffic er s “con fron te d wi th such fl ight to stop the fugiti ve a nd in vestiga te furth er is qu ite consistent with the i ndividual ’s ri ght to go about business or to st ay put and re ma in sil ent in t he f ace of p olice que stion ing .” Id

. at 12 5. “ It was i n this context that [police] d ecided to invest igate Wardl ow after observi ng him flee .” Id

. at 124 (emp hasis added). When the pur suing policeofficer

caught Wardlow, he immediate l y conducted a “p at -d own sea rch for we apo ns. . . because in his experie nce, it was common for the re to be w eapo ns in the near vicini ty of narcotics tran sac tion s.” Id . at 12 1-2 2. The conte xt here is quite diffe rent, and we should not be s o qu ick to ignore the Suprem e Co urt’s pro nou ncem ent in Royerthat onewho is approached by police“need not ans wer an y q uesti on put to him; h e ma y decline to liste n to the qu es tions at all a nd m ay go on h is w ay.” Royer , 460 U.S

. at 498 (ci ting Terry v. Oh io , 392 U .S. 1, 32-3 3 (19 68) ). Of course, Bo nner did no t w alk aw ay; he ran. The Cour t in Ward lo w noted that runni ng away is mo re con sis tentwith guil t than with going ab out one’s busi ness . 528 U. S. at 125 (“[U]nprovoked flight is si mply not a mere refus al to co ope rate. Fligh t, by its very nature, is not ‘going about on e’s business’; in fac t, it is just the opposite.”). That wa s cl earlytrue in Wardlow’s case because the are a w here he was found, the drug activity there and the bag i n his hand combined with his flight to create the articulab le suspici on required u n der Terry

. Here, th er e i s on lyfl ig ht , a nd my

### 17

colle a g ues con ced e that “the S upr eme Cou rt has n ever h eld tha t u nprovoked flight alon e is e nou gh t o ju stify a s top .” M aj. O p. at 8

. I doubt that

the Court i n Ward l ow intende d to st

retch i ts focus on running to the extent

that t he rule i n Royer woul d be
swa ll ow ed, especially since the Co urt discl aimed an y s uch inte nt. Thus, I am skepti cal that t

he Supreme Court intended to annou nce a rule u nder Royerand Wardlow t hat wo uld ca use th e Fo urth Amendment to res t upo n the s peed with which one chooses t o leave an o fficer’s presence. Under such a r ule the fun dam enta l g uaran tees of the F ourth Amendment wou ld vary with a susp ect’s gait. Until the Su pre me C ourt announce s such a rule, I am not w ill ing to conc lude that s omeone in Bonner’s s ituat ion is free to wa lk away from a l awfullystopped vehicl e, but not free to walk t oo qu ickl y away or run. M y colle agues repe atedly stress tha t “Bonner pr ev en te d Of

fi cer Stewart

from control ling the stop by runn in g from the vehic le before the purpose of t he stop was
even announced.” Maj. Op. at 7. 8 I fail to see the importance of whether the purpose of the sto p h ad been announced or not as the majo rity’s analysis w ould surely be the
sa me if Officer

Stewart had announced the purp ose o f the st op. Moreover, an indivi dual who ex e rcis es his or her consti tuti onal right

to lea ve a poli ce officer will i nev itabl y pr event the polic e officer “from contr ol ling t

he stop” and completi ng an in ves tigat ion

. Gi ven the
o fficers’ test imon y, our Fourt h Amend men t inquiry must focus on Bon ner’s flight , not t

he resul tant l oss of controlor the i nabili ty of polic e t o ann oun ce th e rea son for the s top

. Bonner could have been briefly deta in ed insi de of the vehi cle, and he could also h ave b een d etaine d pu rsuan t to an orderto st ep outsi de of the vehicle. In both situ a tions , the detention would be just ifie d by very real c once rns ab out th e officers’ safety . That i s no t w hat happened. The majorit

y’ s focus miss es the poin t. Ab s ent circ um stance s that pe rmit the kind of

detention authorized by Mimms and its pr og en y, this case mustbe analy zed under the m ore res trictive le ns of Terry , Royer , and Wardlow

. Under the prec edent of those cas es, fl ight al one does no t gi ve ris e to pro bable caus e, or rea sona ble suspici on. Similarly, police can not re l y upon some undefined and untethere d notion of “contr ol” to prevent someone from wa lk ing away from an inter rogati on in the absenc e of probable c ause or articulab le suspici on whe re circumst ances 8 See also Maj. Op. at6-7 (“[A] pol ice officer has the autho rity and du ty to contro l the ve hicle a nd its o ccup ants”) ; id at 7, n.1 (“

. . . Bonner fled before the purpose of the st op wa s announced, and before the police could exercise the initial controlau t ho riz ed by Wilson and other cases.”); id . at

9 (“[Bonner’s ] fli ght prevente d th e po li ce f

ro m discharging the ir duty of maintai ning overs ight and c o n trol over the traffic stop . . . .”).

### 18

do not su ggest the safetyconcerns so centra l to Terry , Mim ms and th eir pr og en y. Of course, as I explai n above, i t is not the
arres ting offi c ers he re w ho atte mp t to expla in Bo nner ’s arrest in te rm s of “con tr ol”; it is the majority. The officers quite simp ly state that Bonner was arrested bec aus e he ran ; and so h e w as. Today we thereforehold that “[f]li ght from a non cons ensu al, legitim ate traffic stop (i n which the offi ce rs are autho ri zed to exert

superi ntendence and controlover the oc cupants of t he car) gi ves rise t o r easonable suspici on.” Maj. Op. at 9. This is a troubl ing res oluti on of a close and di fficult

case. Reas onable minds c an easily disagre e a bout the application of Wardlow and Royerto the c ircumst ances here. In the fi na l a naly sis, it maywell be that the Suprem e Court willresol ve the tensi on I se e b etween those two cases. H owe ver, untilth atdaycome s, I s imp l y can not agree with the m ajor ity’s app licatio n of Su pre me Co urt p rece den t. III. Th e Pr oced ura l Pos ture of this

Prosecution There is an a ddi tional , and troubl ing aspect of

this case that requires a brief comme nt . I nas mu ch as the possessi on of the contro lled sub sta n ce found in Bo nner ’s pos session after h is arrestconsti tuted a n of fens e und er bo th state and federallaw, p rosec utors in itially had the option of

prose cuting him in state court or in fede ral cour t. For reason s not apparent on this record, prosec uto rs initially filed sta te charges and he was prosecuted in st ate court where th e Co mm onw ealth of Pe n nsyl vania char ged Bonner with poss ession with the inte nt to distribu te crack cocai ne as well a s severa l misdem eanors a nd summ ary offenses. Defending hims elf in the Court of Common Ple as, Bo nner moved to suppress the physical e viden ce seiz ed fro m h im upo n his a rrest. He argued that t he polic e lacked reaso nable susp icio n t o initially detain him. Follow ing a heari ng on his suppress ion motion, the Cou rt of Common Pleas gr anted Bo nne r’ s mo tio n and suppress ed the evi dence that was seized from him on November 29, 2001. The Commonw ealth the r eafter appealedthe co ur t’s supp ression orde r to the Su perior

Court. However, the Co mm onw ealth wa s not c onte nt to w ait until the state appe llate cou rt could resol ve i ts ap peal. On M arch 13, 2002, Bonner was indicted in fed eral court for possessi ng a con trolled su bstan ce w ith in tentt o dist

ribute. App. at

4, 9. The Co m mo nw ealth therea fter w ithdrew its appeal before the Superior Court of Pen nsylvan ia cou ld rule o n it. The state su ppressi on ruli ng was based upo n that cou rt’ s int erpret ation of the Pennsy l vania Consti tuti on and the ruli ng of the district

court i s, of cour se, based upon t he U nited S tate s Constit ution. 9 Ac co rdingl y, the Rooker-

9 The Pennsyl vania Supreme Court has held that Art . I, § 8 of t he Pen nsylvan ia C onsti tuti on affords gr eater protect ion than the Fou rth Amendment of the United States Con sti tution despit e the almost

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Feldman d octri ne is not impli cated by what can best be described as a prosecut o r ial “switch ero o.” 1 0 Nevertheless, I am sti ll conc erned that state and fede ra l prose cutors appa rently chose to shif t this c ase to fede ral court wh il e the appea l of the state court ’ s suppress ion or der w as pe ndin g. I think it fair to assume a s ignifi cant l ev el o f c ooperati on an d c ommu ni ca ti on b et we e n st ate and federalprosecut ors who executed this hand-off in o rder t o execute an e nd
run around the a dverse d ecisi on of the Cou rt of Common Pleas. Altho ugh we have jurisdict

ion here and must exerc ise it, this proce du ral hi story does not r eflect
we ll on the c riminaljustice sy stem and undermines the appearance of fairness so important

to it s proper f

unctioni ng. “[T]o perform its high function in the bestwa y[,] ‘just ice must sat isfythe appear ance of justice.’” In re M urc hison , 349 U.S. 133, 136 (1955) (quot

ing Offu ttv. United States , 348 U.S . 11, 1 4 (1 954 )). I n the future, I wou ld hope tha t concern for the appearance of

fairne ss w ill constra in prosecuto rs fr om e ngagi ng in the ki nd of unexpl a ined tactical manipulation that appears s o evident

here. identi cal language of the two consti tutional prov is ions. See Commonw ealth v

. Edmunds , 526 Pa. 374, 398 ( 1991) (refus ing to ado pt a good fai th exception to th e war

ra ntre qui re me nt a s set fo rth in United Statesv. Leon , 468 U.S. 897 (1984)).

10 S e e Distri ct of Col umbia Court of App eals v. F eld man , 460 U.S. 462, 482 (1983); Ro oke r v. F ide lit y Trust Co. , 263 U.S. 413, 415-16 (1 923 ). See also Willi amson B.C. Chang, Rediscovering the RookerDoctrine , 31 H ASTINGS L.J. 1337, 1350 (1980) (“ [I]f [fe deral and state] trial
cour ts could rea dily

annul thejud gme nts of each ot her on the meri ts, the prerequisi te o f final ity in the j udicia l sys tem would be destr oyed. ”); 18 J AM E S W M. M OOREET AL. , M OORE’ S F EDERAL P RACTICE¶ 13 3.30 [3] [a] ( 3d e d. 20 03)

. Und e r Rooker-Feldman , lower feder al courts cannot ent ertai n a consti tuti ona l c laim i f it ha s been prev iously adjudic ated in state c ourt, or if the reli ef requested in the clai m requires eithe r determ inin g t ha t th e s tat e c ou rt's decisi on is wro ng o r void ing the state court’s rulin g. G ul la v. North Strabane Twp. , 146 F.3 d 16 8, 17 1 (3 d C ir. 19 98)

.