2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-2004

USA v. Bonner

Precedential or Non-Precedential: Precedential

Docket No. 03-1547

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-1547

 

UNITED STATES OF AMERICA,

Appellant

v.

JERMANE E. BONNER

 

On Appeal from the United States

District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 02-cr-00046)

District Judge: Hon. Gary L. Lancaster

 

Argued September 16, 2003

BEFORE: MC KEE, SMITH and

COWEN, Circuit Judges

(Filed: March 30, 2004)

Mary Beth Buchanan, Esq.

Bonnie R. Schlueter, Esq. (Argued)

Office of United States Attorney

700 Grant Street

Suite 400

Pittsburgh, PA 15219

Counsel for Appellant

W. Penn Hackney, Esq.

Karen S. Gerlach, Esq.

Lisa B. Freeland, Esq. (Argued)

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellee 

 

OPINION

 

COWEN, Circuit Judge.

Jermane Bonner fled from police

after the car in which he was a passenger

was stopped for a routine traffic violation.

The police gave chase and, upon

apprehending him, discovered that he was

carrying crack cocaine. The government

prosecuted Bonner for possession with the

intent to distribute 50 grams or more of

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

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

Court suppressed all evidence seized

during the stop including the drugs. This

appeal by the government followed.

In suppressing the evidence, the

District Court held that the officers lacked

a reasonable, articulable suspicion that

Bonner was involved in criminal activity.

The District Court reasoned that the sole

basis for the stop was Bonner’s flight from

police, and that under Illinois v. Wardlow,

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

570 (2000), and its progeny, mere flight

when police appear on the scene is not

sufficient to establish reasonable

suspicion.
2

We will reverse. Under the facts of

this case we hold that the officers had

reasonable suspicion to stop Bonner.

Although flight alone is not enough to

justify a police stop, this is not a case of

flight upon noticing police. The officers in

this case were effectuating a legitimate

traffic stop. During a traffic stop, police

officers may exercise reasonable

superintendence over the vehicle, its

driver, and passengers. Because Bonner

prevented the police from maintaining

oversight and control over the traffic stop

by fleeing, we hold that the police had

reasonable suspicion to stop him.

I

On March 8, 2001, Officers

Harbaugh, English, Stewart, and Sweeney

were in uniform and on duty at the police

security booth at the entrance to the

Ohioview Acres housing project in Stowe

Town ship , Pen nsylv ania . A t

approximately 11:40 p.m., Officer

Harbaugh noticed a sports utility vehicle

leaving the housing project that had one

headlight out and an expired inspection

sticker. He signaled for the vehicle to

stop. The driver, Nathan Stewart,

complied. In addition to the driver, there

were two passengers: the driver’s brother,

Neil Stewart, in the back seat and Jermane

Bonner in the front passenger seat.

As Officer Harbaugh approached

the driver’s side of the vehicle, Bonner

alighted and ran. Officer Stewart chased

after him on foot, repeatedly yelling for

him to stop. Officer English gave chase in

the patrol car, driving in the direction

Bonner was running, then parked and

continued the chase on foot.

Officer English eventually caught

Bonner by tackling him. Both officers

then subdued and handcuffed Bonner.

While subduing him, Officer English

observed a clear plastic bag in Bonner’s

hand. The bag contained seven golf ball

sized rocks, which were later tested and

found to be crack cocaine. The officers

also seized $534.25 from Bonner during

the arrest.

The driver and other passenger

were told to put the vehicle in park, turn

off the ignition, and step out of the vehicle.

Both were handcuffed and detained for a

brief period of time, then released with a

citation for the traffic violations.

We have jurisdiction under 18

U.S.C. § 3731, and conduct plenary review

of the District Court’s determination that

the officers did not have reasonable

suspicion to stop Bonner. Ornelas v.

United States, 517 U.S. 690, 116 S. Ct.

1657, 134 L. Ed. 2d 911 (1996); United

States v. Valentine, 232 F.3d 350 (3d Cir.

2000). We review the District Court’s

findings of fact for clear error. Ornelas,

517 U.S. at 698, 116 S. Ct. at 1663.

II

As a preliminary matter, the

government challenges the District Court’s

findings that the area was not a high crime

area, and that the hour of the stop, 11:40
3

pm, was not significant to the reasonable

suspicion inquiry. In support of its

contention that the Ohioview Acres

housing project was a high crime area, the

government submitted a log book of

arrests made at the housing project over a

three-year period. As the District Court

found, the log book reflected that there

was an average of 1.3 arrests per week,

and that most of the arrests were for

misdemeanors and summary offenses.

Considering the number of people who

live in the housing project, the District

Court found that this average reflected

neither a high crime area nor trafficking in

narcotics. The government contends this

finding was clearly erroneous, and points

to a news article as further evidence of the

level of crime present in the area. Even

considering the news article, however, the

evidence does not compel the conclusion

that the District Court erred in finding that

the housing project was not a high crime

area. The District Court found that the

stop did occur at 11:40 p.m., but did not

consider that factor relevant to its analysis

of whether there was reasonable suspicion

for the stop. The evidence does not

compel a different conclusion. We

conclude that the fact finding by the

District Court was not clearly erroneous. 

III

It is uncontested that the initial

traffic stop was lawful under the Fourth

Amendment. A police officer who

observes a violation of state traffic laws

may lawfully stop the car committing the

violation. Pennsylvania v. Mimms, 434

U.S. 106, 109, 98 S. Ct. 330, 332, 54 L.

Ed. 2d 331 (1977). It is also well settled

that a police officer executing such a stop

may exercise reasonable superintendence

over the car and its passengers. Under

Mimms, the officer may order the driver

out of the vehicle without any

particularized suspicion. Mimms, 434

U.S. at 110-11, 98 S. Ct. at 333. The

Supreme Court extended that bright line

rule to allow the officer to order any

passengers out of the car as well.

Maryland v. Wilson, 519 U.S. 408, 117 S.

Ct. 882, 137 L. Ed. 2d 41 (1997).

Alternatively, the officer may order all of

the occupants to remain in the car with

their hands up. United States v.

Moorefield, 111 F.3d 10 (3d Cir. 1997). 

In addition, the officer may pat down the

occupants of the vehicle and conduct a

search of the passenger compartment, if he

has a reasonable suspicion that the

occupants might be armed and dangerous.

Michigan v. Long, 463 U.S. 1032, 1049-

50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d

1201 (1983) (permitting search of vehicle

during traffic stop); Mimms, 434 U.S. at

111-112, 98 S. Ct. at 334 (permitting pat

down of driver upon reasonable

suspicion); Terry v. Ohio, 392 U.S. 1, 17,

88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889

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

(permitting pat down of passenger upon

reasonable suspicion).

The government asserts that the

police officers ordered Bonner and the

other occupants to stay in the vehicle. At

the suppression hearing, however, there

was conflicting testimony whether the
4

officers said anything before Bonner ran.

The District Court made no finding with

respect to what, if anything, the officers

said before Bonner got out of the vehicle

and ran. We will assume for the purpose

of this opinion that the officers did not

issue any commands before Bonner began

running. But even absent a specific

command, it is undisputed that Bonner, an

occupant of the stopped vehicle, ran from

the scene of a legitimate traffic stop

without authorization or consent of the

officers. During such a stop, a police

officer has the authority and duty to

control the vehicle and its occupants, at

least for a brief period of time.1 Bonner

prevented Officer Stewart from controlling

the stop by running from the vehicle

before the purpose of the stop was even

announced.

Under Terry v. Ohio, 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 officer has “a

reasonable, articulable suspicion that

criminal activity is afoot.” Illinois v.

Wardlow, 528 U.S. 119, 123, 120 S. Ct.

673, 675, 145 L. Ed. 2d 570 (2000).

Although reasonable suspicion is less

demanding than probable cause, the Fourth

Amendment does require that an officer

making a stop have some level of objective

justification for that stop. United States v.

Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,

1585, 104 L. Ed. 2d 1 (1989). In

evaluating whether a particular stop was

justified, courts must look at the totality of

the circumstances surrounding the stop.

Sokolow, 490 U.S. at 8, 109 S. Ct. at 1586

(quoting United States v. Cortez, 449 U.S.

411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d

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

police officers are allowed to use a

reasonable amount of force. Graham v.

Connor, 490 U.S. 386, 109 S. Ct. 1865,

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

that flight, standing alone, is not sufficient

to engender reasonable suspicion on the

part of a police officer. Indeed, the

Supreme Court has never held that

unprovoked flight alone is enough to

justify a stop. The Supreme Court has

held, however, that flight upon noticing

police, plus some other indicia of

wrongdoing, can constitute reasonable

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

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

was Wardlow’s mere presence in an area

known for high narcotics trafficking.

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

676. In holding that flight plus presence in

a high crime area justified the stop, the

 

1The Supreme Court has never

addressed the question of whether, during

a lawful traffic stop, the police could

detain any passengers for the entire

duration of the stop. Indeed, the Court

explicitly left that question open when it

held that the police could order passengers

out of the car during a stop. Maryland v.

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

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

That question is not before us, as Bonner

fled before the purpose of the stop was

announced, and before the police could

exercise the initial control authorized by

Wilson and other cases.
5

Court explained, “the determination of

reasonable suspicion must be based on

commonsense judgments and inferences

about human behavior.” Wardlow, 528

U.S. at 125, 120 S. Ct. at 676.

In Wardlow, eight officers in a

four-car caravan converged on a

neighborhood known for high narcotics

trafficking. Upon arriving in the area, two

of the officers noticed the defendant

standing near a building, holding a bag.

The defendant looked in the direction of

the officers and then fled. Wardlow, 528

U.S. at 122, 120 S. Ct. at 675. Before he

ran, the officers had no reason to suspect

the defendant of any wrongdoing, and had

no legitimate cause to detain him; the

defendant simply fled from the possibility

of a consensual encounter with the police.

Mere presence in an area known for

high crime does not give rise to reasonable

suspicion for a stop. Brown v. Texas, 443

U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L.

Ed. 2d 357 (1979). Police officers may

approach individuals without reasonable

suspicion or probable cause, and may

question such individuals without

implicating the Fourth Amendment.

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

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

(1983). An individual approached in this

manner “need not answer any question put

to him; indeed, he may decline to listen to

the questions at all and may go on his

way.” Royer, 460 U.S. at 498, 103 S. Ct.

at 1324 (citing Terry v. Ohio, 392 U.S. 1,

32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed.

2d 889 (1968) (Harlan, J. concurring);

Terry, 392 U.S. at 34, 88 S. Ct. at 1886

(White, J. concurring)). Moreover, a

refusal to cooperate with the police in a

consensual encounter, without more,

cannot constitute reasonable suspicion for

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

437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d

389 (1991) (citations omitted).

In this case, however, Bonner did

not simply flee upon “noticing” police, nor

did he simply refuse to cooperate during a

consensual encounter. Bonner fled from a

lawful traffic stop, before the officers had

the chance to announce the purpose of the

stop. He continued fleeing despite

repeated orders to stop, and he did not stop

running until he was tackled by Officer

English. Bonner’s flight from a lawful

police traffic stop, where that flight

prevented the police from discharging their

duty of maintaining oversight and control

over the traffic stop, provided the officers

with reasonable suspicion to stop Bonner

for further investigation. Flight from a

non-consensual, legitimate traffic stop (in

which the officers are authorized to exert

superintendence and control over the

occupants of the car) gives rise to

reasonable suspicion.

IV

By reason of Bonner’s flight in the

course of a legitimate traffic stop, the

officers had reasonable suspicion to stop

him. Upon effectuating the stop the drugs

were revealed, giving probable cause to

arrest. The judgment of the District Court

entered on February 12, 2003, will be
6

reversed. The case will be remanded to

the District Court for further proceedings

consistent with this opinion.

United States v. Bonner, No. 03-1547

Smith, Concurring.

Because I agree that “flight from a

non-consensual, legitimate traffic stop (in

which the officers are authorized to exert

superintendence and control over the

occupants of the car) gives rise to

reasonable suspicion,” I join Judge

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

write separately only to highlight an issue

implicated in the District Court’s factfinding which we have not been required

to address: whether under the flight “plus”

analysis of Wardlow, 528 U.S. 119, the

government is required to prove the

existence of objective criteria for what

constitutes a high crime area and that the

stop occurred in such an area, or rather that

the government is required to prove that

officers effecting the stop had a reasonable

articulable basis to believe that they were

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

because I believe these alternatives require

the District Court to conduct

fundamentally different inquiries, even

though the evidence offered for both may

be overlapping or even identical.

Here, the District Court found that

“the government has not shown by a

preponderance of the evidence that Ohio

View Acres is such an area.” After

reviewing the relevant evidence, the

District Court declared that evidence

“hardly makes Ohio View Acres a heavy

crime and narcotics trafficking area.” 

What I am concerned about in these

Wardlow-type cases is the fact-finder’s

focus: should it be that of a federal judge,

operating within the confines of a

courtroom, who believes the area to be one

of high crime, or that of a police officer

who, based on experience and an

awareness of crime and arrest data, had a

 

2

Judge Cowen describes this factor as

whether the area was a “high crime area.”

Maj. op. at 2. The District Court’s

analysis, however, was more limited and

addressed only whether this was a “high

narcotics trafficking area.” As there are

many crimes which do not involve

narcotics trafficking, an area could be one

in which there is a high volume of crime,

but does not qualify as a “high narcotics

trafficking area.” Because the test should

be the same for either analysis, however,

the distinction is not material for purposes

of this concurrence. For purposes of

continuity, then, I adopt Judge Cowen’s

articulation of the question–whether the

area was a “high crime area.”
7

basis to form a reasonable articulable

belief that it is such an area?3 Obviously,

the differences in focus are not only

differences of experience and perspective.

A judge engaged in adjudicative factfinding will apply standards of credibility

and proof that differ from the cognitive

processes of an officer acting in the field.

The touchstone of Terry v. Ohio is

its requirement that a court consider

whether “the facts available to the officer

at the moment of the seizure or the search

‘warrant a man of reasonable caution in

the belief’ that the action taken was

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

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

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

97 (1964)). As explained by the Supreme

Court in United States v. Cortez, 449 U.S.

411, 418 (1981), an officer’s suspicion that

criminal activity is afoot may be informed

by “various objective observations,

information from police reports, if such are

available, and consideration of the modes

or patterns of operation of certain kinds of

lawbreakers. From these data, a trained

officer draws inferences and makes

deductions–inferences and deductions that

might well elude an untrained person.”

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

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

their own experience and specialized

training to make inferences from and

dedu ctions abou t the cumulative

information available to them that might

well elude an untrained person.”) (internal

quotation marks omitted); Ornelas v.

United States, 517 U.S. 690, 699 (1996)

(reviewing court must give the appropriate

weight to factual inferences drawn by local

law enforcement officers). In the same

way, an officer is in the position to know

the routines and patterns of a geographic

area, and whether it is more prone to

crime. This knowledge may not be

reflected on arrest records and log sheets,

as arrests are not the only indicia of crime.

In any case, we need not resolve the issue

here.

I agree that the evidence offered by

the government does not compel the

conclusion that the District Court erred in

finding that Ohio View Acres was not a

high crime area. And even if the District

Court were required to determine whether

the officers had a reasonable articulable

basis to believe it was a high crime area,

such a finding would contribute nothing to

the result here because the government has

demonstrated flight “plus” by other

evidentiary means.

Finally, although I join Judge

Cowen in reversing the District Court, I

echo the sentiments of Judge McKee

expressed in Part III of his dissent.

It should be a rare occasion when

judges criticize, and thereby intrude into, a

legitimate exercise of prosecutorial

discretion. Nor should we routinely

 

3Wardlow did not resolve this issue

because it appears that in that case there

was no dispute that the stop took place in

a high crime area. In the case before us,

the District Court did confront a factual

dispute on this issue.
8

question in our opinions the policy

decisions of Congress to federalize what

has traditionally been state law street

crime. Our institutional role as judges is

limited by our jurisdiction and by the

comity and respect we owe to coordinate

branches of government.

That being said, the instant case

presents a series of events which the

dissent characterizes as a prosecutorial

“switcheroo.” I cannot disagree with that

characterization, and I share the “concern

for the appearance of fairness” expressed

by Judge McKee. It is one thing for the

government to assume an investigation

initiated by state law enforcement

officials, or even to adopt a prosecution

commenced by state prosecutors. It is

quite another to seek a federal indictment

where the federal interest in the case is

recognized only after state prosecutors

have given the case their best shot in the

state courts and lost on an issue of state

law. Not only does such a tactic offend

fundamental notions of fairness, it is

contrary to traditional notions of our

federalism.

U.S. v. Bonner, No. 03-1547

McKee, Dissenting

I must respectfully dissent, because

I believe the majority’s analysis is

inconsistent with Terry v. Ohio, 392 U.S.

1 (1968), and Illinois v. Wardlow, 528

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

case a bit differently than the district court,

I nevertheless conclude that Supreme

Court precedent compels us to affirm the

district court’s order suppressing the

evidence that was seized in this case.

Moreover, although I do not think the

circumstances here establish a Terry stop,

I do agree that we must begin our analysis

with the Supreme Court’s decision in

Terry. 

I. Terry v. Ohio

In Terry, the Supreme Court held

that a police officer may approach an

individual “for purposes of investigating

possibly criminal behavior even though

there is no probable cause to make an

arrest,” and briefly detain him/her in order

to fulfill “[a] legitimate investigative

function [.]” 392 U.S. at 22.

The police officer in Terry

approached and briefly detained two

individuals after observing their suspicious

behavior from a distance and concluding

that they were casing a store that they were

about to burglarize. The Terry Court held

that the Fourth Amendment allowed the

officer to briefly detain them in order to

conduct a brief investigation into their

suspicious behavior. Since the

individuals’ actions also suggested that

they might be armed, the Court also

concluded that the Fourth Amendment

allowed the officer “to conduct a carefully

limited search of the outer clothing . . . in

an attempt to discover weapons which

might be used to assault [the officer].” Id.

at 30. The Court explained: 

The actions of [the

defendants] were consistent

with the officer’s hypothesis
9

that these men were

conte mplatin g a

daylight robbery - -

whi ch, it i s

rea sonabl e t o

assume, would be

likely to involve the

use of weapons - -

and nothing in their

conduct from the

time he first noticed

them until the time

he confronted them

and identif i e d

himself as a police

officer gave him

sufficient reason to

nega t e t h a t

hypothesis.

Id. at 28.

Therefore, “under Terry v. Ohio and

subsequent cases, ‘an officer may,

consistent with the Fourth Amendment,

conduct a brief, investigatory stop if the

officer has a reasonable, articulable

suspicion that criminal activity is afoot.’”

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

353 (3d Cir. 2000) (internal citation

omitted). The Supreme Court has

explained that:

Reasonable suspicion is a

less demanding standard

than probable cause not only

in the sense that reasonable

suspicion can be established

with information that is

different in quantity or

content than that required to

establish probable cause, but

also in the sense that

reasonable suspicion can

arise from information that

is less reliable than that

required to show probable

cause.

Id. (internal quotation marks omitted)

(quoting Alabama v. White, 496 U.S. 325,

330 (1990)). Accordingly, absent probable

cause, an individual’s detention must be

supported by “reasonable, articulable

suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123

(2000). However, Bonner was “detained”

after the vehicle he was riding in was

stopped for a traffic infraction, and the

Supreme Court has allowed greater

latitude in the context of traffic stops.

A. Terry applied to traffic stops

Terry was first implicated in the

context of a lawful traffic stop in

Pennsylvania v. Mimms, 434 U.S. 106

(1977). There, a police officer legally

stopped a car for a traffic violation and

ordered the driver to get out. The officer

was not motivated by any particularized

suspicion in doing so; rather, it was the

officer’s policy to order drivers out of their

cars “as a matter of course whenever they

had been stopped for a traffic violation.”

Id. at 109-10. Once the driver was out of

the car, the officer noticed a bulge under

the driver’s jacket and the officer

immediately conducted a “pat-down”

search because he believed the bulge was
10

a weapon. Id. at 111-12. As a result of that

search, a gun was seized, and the

defendant was thereafter arrested.

The Supreme Court held that the

search did not violate the Fourth

Amendment. The Court reasoned that

considerations of safety justified allowing

police to order drivers to get out of their

vehicles during lawful traffic stops

because weapons could be concealed

inside the vehicle in easy reach of the

driver. Since police could lawfully order

the driver out of the vehicle, the Court

concluded that, under Terry, the officer

was “justified in conducting a limited

search for weapons once he had reasonably

concluded that the person whom he had

legitimately stopped might be armed and

presently dangerous.” Id.

The Court extended the rule of

Mimms to include passengers of lawfully

stopped vehicles in Maryland v. Wilson,

519 U.S. 408 (1997). There, as in Mimms,

a traffic violation created the grounds to

legally stop an automobile. The police

ordered the passenger out of the car as a

precaution, not because of any suspicion of

illegality. The Wilson Court had no

difficulty concluding that the same

considerations of safety present when

drivers are ordered to get out of a stopped

vehicle outweighed the minimal intrusion

on any passenger who is ordered out of a

car that has been legally stopped for a

traffic infraction. Id. at 414. The Wilson

Court found that, “as a practical matter, the

passengers are already stopped by the

virtue of the stop of the vehicle,” and the

order to get out of the car creates only a

minimal additional intrusion. Id. at 413-14.

 In addition, “the fact that there is more

than one occupant of the vehicle increases

the possible sources of harm to the

officer.” Moreover, “the motivation of a

passenger to employ violence to prevent

apprehension. . . is every bit as great as

that of the driver.” Id. at 414.

B. Bonner was not detained under

Terry

The majority’s analysis assumes

that we are confronted with a Terry stop,

and the district court ultimately analyzed

the detention under Terry. However, after

reviewing the transcript of the suppression

hearing, it is clear to me that the police

officers who “stopped” Bonner were not

basing their actions on any reasonable,

articulable suspicion as is required under

Terry. They certainly never were able to

explain their conduct by establishing any

such suspicion despite having every

opportunity to do so during the

suppression hearing. I think it telling that,

at the very beginning of the suppression

hearing, the district court asked the

government if Bonner was searched

pursuant to a Terry stop. The court

inquired: “I understand that this is a

warrantless search; is that a Terry v. Ohio

search?” App. at 127. The government’s

response did not confirm a Terry stop.

Rather, counsel stated: “This was a search

incident to arrest.” Id.

It is not surprising that the

government did not argue Terry initially

because the testimony that the government

produced at the suppression hearing did
11

not establish a Terry stop. Rather, the

testimony was consistent with, but fell

short of establishing, a search incident to a

valid arrest. The seizure can not be

justified on that basis because the

testimony failed to establish probable

cause for an arrest other than mere flight.

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

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

When Officer English was asked

why he chased Bonner he responded:

“They were exiting a high crime area,

known trafficking (sic), and the officers

informed the Defendant to stop and get

back into the vehicle, and he failed to

comply with the officer’s orders.” App. at

148. However, the district court rejected

the testimony that Bonner was ordered

back into the car as well as the officer’s

testimony about a “high crime area” or one

known for “narcotics trafficking.” Id. at

17.5 We reverse the district court’s factual

findings only when they are clearly

erroneous, i.e. when they are “completely

devoid of a credible evidentiary basis or

 

4

 Despite its initial inquiry into a search

incident to arrest, the district court did

base its ruling on Terry. App. at 18-19

(“Bonner’s flight alone is insufficient to

create a reasonable articulable suspicion

that he was involved in criminal activity. .

. . Because this court finds that the

government failed to meet its burden of

showing Bonner’s stop was supported by

a reasonable articulable suspicion of

criminal conduct, the stop and seizure

violated Bonner’s Fourth Amendment

rights.”). 

 

5

 In his concurring opinion, Judge

Smith correctly notes the distinction

between establishing that an area is a “high

crime area” versus establishing an officer’s

good faith belief that it is one. I do not

suggest that the district court was correct

to the extent that it required the

government to prove that the area is

actually “a high crime area” by a

preponderance of the evidence. Rather,

the inquiry must be the subjective belief of

the arresting officer. However, it is clear

under Terry that the subjective belief must

be objectively reasonable. Hill v.

California, 401 U.S. 797 (1971). Absent

more than was offered at the suppression

hearing, the district court’s inquiry

undermined the objective reasonableness

of any subjective belief that the area in

question was a “high crime” area or known

for “narcotics trafficking.”

Moreover, I think that the

requirement of an objectively reasonable

belief addresses Judge Smith’s concern

that such determinations are being made

by judges in the comfort of their

courtrooms rather than by officers in the

streets. See Concurring Op. at 2. Although

proper deference must be afforded to the

training, experience, and knowledge of

police officers, as well as the trying

circumstances facin g th em, th e

Constitution does not allow us to abdicate

our responsibilities in favor of their

judgments simply because we are

operating within the comfortable confines

of a courtroom or appellate chambers. 
12

bear no rational relationship to the

supporting data.”6 Here, the district

court’s findings of fact are clearly

supported by the record. 

There was conflicting testimony

about whether the officers said anything to

Bonner before he ran, and the court

discredited the officers’ conflicting

testimony that they did. Id. at 15. Thus, as

Judge Smith summarizes in his concurring

opinion, the issue before us may be

distilled as whether “flight from a nonconsensual, legitimate traffic stop . . . [by

itself] gives rise to reasonable suspicion.”

See Concurring Op. at 1, and Maj. Op. at

9. 

Bonner was chased, tackled and

handcuffed simply because he ran. That is

absolutely consistent with Officer

English’s testimony at the suppression

hearing. Officer English was asked the

following question: “[T]he reason Mr.

Bonner was being chased was because he

started running, correct?” The officer

responded: “That’s the reason the initial

chase was started, I believe.” App. at 153.

Officer English described the stop as

follows:

I eventually caught up with

the Defendant, and we fell

to the ground. . . . The

Defendant continued to try

to get up away from me. I

had him in a grasp around

the waist; he continued to

try to get up and get away

from me. . . . I informed

him numerous times to place

his hands behind his back

and quit resisting.

App. at 149. The officer was then asked

whether or not it was necessary to forcibly

place Bonner’s hands behind his back and

Officer English confirmed that he was able

“to subdue the Defendant” together with

Officer Sweeney and Officer Stewart. Id.

Therefore, the district court was quite

correct in stating: “The only pertinent

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

The majority states that Officer

English observed a plastic bag in Bonner’s

hand “[w]hile subduing him.” Maj. Op. at

4. However, Officer English actually

stated that he did not see the bag until after

Bonner had been handcuffed. Officer

English stated that after he was finally able

to subdue Bonner, the officers discovered

that “he was clutching a plastic baggie. .

.”. App. at 149. The other officer, Officer

Stewart, was never asked when he first

saw the baggie that Bonner was clutching.

The only relevant testimony on this record

is English’s testimony that he noticed the

bag after Bonner was subdued, not before

or while he was being subdued. Officer

Stewart testified that he saw Officer

English take something out of Bonner’s

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

at 136.

“It is the state’s burden to

demonstrate that the seizure it seeks to

 

6 United States v. Taftsiou, 144 F.3d

287, 293 (3d Cir. 1998); see also United

States v. Perez, 280 F.3d 318, 336 (3d Cir.

2002).
13

justify on the basis of the reasonable

suspicion was sufficiently limited in scope

and duration to satisfy the conditions of an

investigative seizure.” Florida v. Royer,

460 U.S. 491, 500 (1983). Terry, like

Mimms and Wilson, recognized that

officers who briefly detain individuals for

investigation based upon articulable

suspicion need to protect themselves and

that concerns for the safety of the officer

and others justify certain limited steps

consistent with that concern. The Terry

Court explained:

[W]e can not blind

ourselves to the need for law

enforcement officers to

protect themselves and other

prospective victims of

violence in situations where

they may lack probable

cause for an arrest. When

an officer is justified in

believing that an individual

whose suspicious behavior

he is investigating at close

range is armed and

dangerous to the officer or

to others, it would appear to

be clearly unreasonable to

deny the officer the power

to take necessary reasonable

measures to determine

whether the person is in fact

carrying a weapon and to

neutralize the threat of

physical harm.

392 U.S. at 24. Nevertheless, the Court

remained cognizant of “the nature and

quality of the intrusion” of the person

detained. Id. It concluded that the

authority conferred on the Fourth

Amendment for a brief detention must be

“narrowly drawn. . . to permit a reasonable

search for weapons for the protection of

the police officer, where he has reason to

believe that he is dealing with an armed

and dangerous individual, regardless of

whether he has probable cause to arrest the

individual for the crime.” Id. at 27. Thus,

“[t]he manner in which the seizure and

search were conducted is . . . as vital a part

of the inquiry as whether they were

warranted at all.” Id. at 28.

As noted above, the Mimms Court

held that police may order the driver of a

lawfully stopped automobile to step out of

the car for the officer’s own protection,

stating that “a significant percentage of

murders of police officers occurs when the

officers are making traffic stops.” 434 U.S.

106, 110 (1977) (internal citation and

quotation marks omitted). The danger is

reduced with only minimal additional

intrusion by allowing officers to “control”

the situation to the extent of ordering

occupants out of the car. “Establishing a

face-to-face confrontation diminishes the

possibility, otherwise substantial, that the

driver,” or passenger, “can make

unobserved movements; this, in turn,

reduces the likelihood that the officer will

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

of harm to both the police and the

occupants is minimized if the officers

routinely exercise unquestioned command
14

of the situation.” Michigan v. Summers,

452 U.S. 692, 702-03 (1981) (internal

citation omitted).7

However, my colleagues have

severed the rule from its analytical

moorings. They are applying the rule here

even though the police did not even

attempt to explain their actions in terms of

any perceived threat from Bonner getting

out of the car and any danger arose from

chasing, tackling, and subduing an

occupant of a stopped vehicle who was

merely trying to leave. Of course, I do not

mean to suggest that flight necessarily

eliminates the danger the Court was

concerned with in Terry, Mimms or

Wilson. However, I think it a stretch to

equate law enforcement’s need to control

a driver or passenger with the officers’

need to control Bonner here. Officer

English clearly testified that Bonner was

chased and handcuffed because he ran

away from a stopped car. No other

justification is offered, except by my

colleagues. Accordingly, I believe this

seizure can only stand only if it can be

justified as a search incident to a valid

warrantless arrest.

The government no doubt realized

this and therefore, as explained above, told

the suppression court that was precisely

the justification for the search. However,

absent probable cause to arrest Bonner, the

search can not be sustained as a search

incident to an arrest. United States v.

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

2002). Moreover, even if we view this as

a Terry stop, I would still conclude that the

district court’s suppression order was

correct because there is nothing to

establish reasonable suspicion but

Bonner’s flight. 

In addition, as noted above, the

scope and duration of the detention

authorized under Terry must be consistent

with the articulable suspicion underlying

the detention; that is the sine qua non of

Terry. It is the basis for eliminating the

requirement of probable cause before

detaining someone. As the Court stated in

Florida v. Royer, 460 U.S. 491, 500

(1983), “an investigative detention must

be temporary and last no longer than is

necessary to effectuate the purpose of the

stop. Similarly, the investigative methods

employed should be the least intrusive

means reasonably available to verify the

officer’s suspicions in a short period of

time.” Terry does not authorize police to

chase, tackle and handcuff one who runs

away from them based solely on flight.

Moreover, I do not believe other precedent

can support that level of intrusion either. 

II. Detention Based on Flight Alone

To determine if Bonner was

legitimately detained based solely on his

flight, we must examine two Supreme

Court cases regarding an individual’s right

 

7

 In United States v. Moorefield, 111

F.3d 10, 12-13 (3d Cir. 1997), we held that

police could order a passenger in a

lawfully stopped car to remain inside with

his/her hands in the air based upon the

same considerations of safety relied upon

in Mimms and Wilson. 
15

to walk away from police officers; Florida

v. Royer, 460 U.S. 491 (1983), and Illinois

v. Wardlow, 528 U.S. 119 (2000).

A. Florida v. Royer

In Royer, the Supreme Court held

that there is no obligation to submit to

inquiries when approached by police. The

Court also held that refusal to submit to

police questioning or cooperate with a

police inquiry does not, without more,

furnish the necessary grounds for

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

Prior to Terry v. Ohio [],

any restraint on the person

amounting to a seizure for

the purposes of the Fourth

Amendment was invalid

unless justified by probable

cause. Terry created a

limited exception to this

general rule: search and

seizures are justifiable under

the Fourth Amendment if

there is articulable suspicion

that a person has committed

or is about to commit a

crime. 

Id. at 498 (citations omitted).

Thus, the Royer Court reinforced

the fact that Terry did not create a license

to detain for investigation in the absence

of articulable suspicion. The Court also

stressed that “[d]etentions may be

‘investigative’ yet violative of the Fourth

Amendment absent probable cause.” Id. at

499. “In the name of investigating a

person who is no more than suspected of

criminal activity, the police may not carry

out a full search of the person. . . . Nor

may the police seek to verify their

suspicions by means that approach the

conditions of arrest.” Id. (citing Dunaway

v. New York, 442 U.S. 200, 207-09

(1979)).

The majority notes that Bonner was

the occupant of a stopped vehicle who “ran

from the scene of a legitimate traffic stop

without authorization or consent of the

officers,” and assume that analysis under

Mimms and Wilson is appropriate. Maj.

Op. at 6 (emphasis added). However,

under Royer, it is irrelevant that Bonner

left the vehicle without the police officers’

authorization. Royer did not condition an

individual’s right to go on his/her way on

first obtaining police permission. In fact,

conditioning the right to leave a police

inquiry on the street on obtaining

“authorization or consent” would totally

negate Royer’s holding. As the majority

correctly notes, a refusal to cooperate with

the police in a consensual encounter,

without more, can not constitute

reasonable suspicion for a stop. Maj. Op.

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

429, 437 (1991)).

The difficulty with analyzing this

case stems not from Royer but from

Illinois v. Wardlow, 528 U.S. 119 (2000).

The Court’s language there creates some

tension with its prior holding in Royer

even though the Wardlow Court was

careful to explicitly reaffirm the holding in

Royer.
16

B. Illinois v. Wardlow

In Wardlow, the Court held that

police properly conducted a Terry stop of

an individual who fled after looking in the

direction of an approaching police caravan

in “an area known for heavy narcotics

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

summarized Royer as holding “that when

an officer, without reasonable suspicion or

probable cause, approaches an individual,

an individual has a right to ignore the

police and go about his business.” Id. at

125. However, the Court also noted that

flight is one of the circumstances that must

be considered under Terry. Id. In doing

so, however, the Court reiterated that “any

refusal to cooperate, without more, does

not furnish the minimal level of objective

justification needed for a detention or

seizure.” Id. (quoting Florida v. Bostick,

501 U.S. 429, 437 (1991)). 

A close reading of the Court’s

opinion in Wardlow resolves any apparent

tension. It was not Wardlow’s flight that

justified his detention. Rather, it was

flight in context with the other

circumstances in that case. The

circumstances included the fact that police

were “patrolling an area known for heavy

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

the police were traveling in a caravan

“because they expected to find a crowd of

people in the area, including lookouts and

[drug] customers.” Id. As the police

caravan approached Wardlow, police saw

him look at them and run, holding a bag as

he fled. Given the context, police could

reasonably conclude that he was a drug

dealer, purchaser, or lookout. Under those

circumstances, allow ing o ffic ers

“confronted with such flight to stop the

fugitive and investigate further is quite

consistent with the individual’s right to go

about business or to stay put and remain

silent in the face of police questioning.”

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

[police] decided to investigate Wardlow

after observing him flee.” Id. at 124

(emphasis added). When the pursuing

police officer caught Wardlow, he

immediately conducted a “pat-down search

for weapons. . . because in his experience,

it was common for there to be weapons in

the near vicinity of narcotics transactions.”

Id. at 121-22. 

The context here is quite different,

and we should not be so quick to ignore

the Supreme Court’s pronouncement in

Royer that one who is approached by

police “need not answer any question put

to him; he may decline to listen to the

questions at all and may go on his way.”

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

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

course, Bonner did not walk away; he ran.

The Court in Wardlow noted that running

away is more consistent with guilt than

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

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

a mere refusal to cooperate. Flight, by its

very nature, is not ‘going about one’s

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

That was clearly true in Wardlow’s case

because the area where he was found, the

drug activity there and the bag in his hand

combined with his flight to create the

articulable suspicion required under Terry.

Here, there is only flight, and my
17

colleagues concede that “the Supreme

Court has never held that unprovoked

flight alone is enough to justify a stop.”

Maj. Op. at 8. 

I doubt that the Court in Wardlow

intended to stretch its focus on running to

the extent that the rule in Royer would be

swallowed, especially since the Court

disclaimed any such intent. Thus, I am

skeptical that the Supreme Court intended

to announce a rule under Royer and

Wardlow that would cause the Fourth

Amendment to rest upon the speed with

which one chooses to leave an officer’s

presence. Under such a rule the

fundamental guarantees of the Fourth

Amendment would vary with a suspect’s

gait. Until the Supreme Court announces

such a rule, I am not willing to conclude

that someone in Bonner’s situation is free

to walk away from a lawfully stopped

vehicle, but not free to walk too quickly

away or run.

My colleagues repeatedly stressthat

“Bonner prevented Officer Stewart from

controlling the stop by running from the

vehicle before the purpose of the stop was

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

see the importance of whether the purpose

of the stop had been announced or not as

the majority’s analysis would surely be the

same if Officer Stewart had announced the

purpose of the stop. Moreover, an

individual who exercises his or her

constitutional right to leave a police

officer will inevitably prevent the police

officer “from controlling the stop” and

completing an investigation. Given the

officers’ testimony, our Fourth

Amendment inquiry must focus on

Bonner’s flight, not the resultant loss of

control or the inability of police to

announce the reason for the stop. 

Bonner could have been briefly

detained inside of the vehicle, and he

could also have been detained pursuant to

an order to step outside of the vehicle. In

both situations, the detention would be

justified by very real concerns about the

officers’ safety. That is not what

happened. The majority’s focus misses the

point. Absent circumstances that permit

the kind of detention authorized by Mimms

and its progeny, this case must be analyzed

under the more restrictive lens of Terry,

Royer, and Wardlow. Under the precedent

of those cases, flight alone does not give

rise to probable cause, or reasonable

suspicion. Similarly, police can not rely

upon some undefined and untethered

notion of “control” to prevent someone

from walking away from an interrogation

in the absence of probable cause or

articulable suspicion where circumstances

 

8

See also Maj. Op. at 6-7 (“[A] police

officer has the authority and duty to

control the vehicle and its occupants”); id

at 7, n.1 (“. . .Bonner fled before the

purpose of the stop was announced, and

before the police could exercise the initial

control authorized by Wilson and other

cases.”); id. at 9 (“[Bonner’s] flight

prevented the police from discharging their

duty of maintaining oversight and control

over the traffic stop. . . .”).
18

do not suggest the safety concerns so

central to Terry, Mimms and their progeny.

Of course, as I explain above, it is not the

arresting officers here who attempt to

explain Bonner’s arrest in terms of

“control”; it is the majority. The officers

quite simply state that Bonner was arrested

because he ran; and so he was. 

Today we therefore hold that

“[f]light from a nonconsensual, legitimate

traffic stop (in which the officers are

authorized to exert superintendence and

control over the occupants of the car) gives

rise to reasonable suspicion.” Maj. Op. at

9. This is a troubling resolution of a close

and difficult case. Reasonable minds can

easily disagree about the application of

Wardlow and Royer to the circumstances

here. In the final analysis, it may well be

that the Supreme Court will resolve the

tension I see between those two cases.

However, until that day comes, I simply

can not agree with the majority’s

application of Supreme Court precedent. 

III. The Procedural Posture of this

Prosecution

There is an additional, and

troubling aspect of this case that requires a

brief comment. Inasmuch as the

possession of the controlled substance

found in Bonner’s possession after his

arrest constituted an offense under both

state and federal law, prosecutors initially

had the option of prosecuting him in state

court or in federal court. For reasons not

apparent on this record, prosecutors

initially filed state charges and he was

prosecuted in state court where the

Commonwealth of Pennsylvania charged

Bonner with possession with the intent to

distribute crack cocaine as well as several

misdemeanors and summary offenses.

Defending himself in the Court of

Common Pleas, Bonner moved to suppress

the physical evidence seized from him

upon his arrest. He argued that the police

lacked reasonable suspicion to initially

detain him. Following a hearing on his

suppression motion, the Court of Common

Pleas granted Bonner’s motion and

suppressed the evidence that was seized

from him on November 29, 2001.

The Commonwealth thereafter

appealed the court’s suppression order to

the Superior Court. However, the

Commonwealth was not content to wait

until the state appellate court could

resolve its appeal. On March 13, 2002,

Bonner was indicted in federal court for

possessing a controlled substance with

intent to distribute. App. at 4, 9. The

Commonwealth thereafter withdrew its

appeal before the Superior Court of

Pennsylvania could rule on it.

The state suppression ruling was

based upon that court’s interpretation of

the Pennsylvania Constitution and the

ruling of the district court is, of course,

based upon the U nited S tate s

Constitution.9 Accordingly, the Rooker-

 

9

 The Pennsylvania Supreme Court has

held that Art. I, § 8 of the Pennsylvania

Constitution affords greater protection

than the Fourth Amendment of the United

States Constitution despite the almost
19

Feldman doctrine is not implicated by

what can best be described as a

prosecut o r ial “switch ero o.” 1 0

Nevertheless, I am still concerned that

state and federal prosecutors apparently

chose to shift this case to federal court

while the appeal of the state court’s

suppression order was pending. I think it

fair to assume a significant level of

cooperation and communication between

state and federal prosecutors who executed

this hand-off in order to execute an end

run around the adverse decision of the

Court of Common Pleas. Although we

have jurisdiction here and must exercise it,

this procedural history does not reflect

well on the criminal justice system and

undermines the appearance of fairness so

important to its proper functioning. “[T]o

perform its high function in the best way[,]

‘justice must satisfy the appearance of

justice.’” In re Murchison, 349 U.S. 133,

136 (1955) (quoting Offutt v. United

States, 348 U.S. 11, 14 (1954)). In the

future, I would hope that concern for the

appearance of fairness will constrain

prosecutors from engaging in the kind of

unexplained tactical manipulation that

appears so evident here.

identical language of the two constitutional

provisions. See Commonwealth v.

Edmunds, 526 Pa. 374, 398 (1991)

(refusing to adopt a good faith exception

to the warrant requirement as set forth in

United States v. Leon, 468 U.S. 897

(1984)).

 

10 See District of Columbia Court of

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

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

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

Williamson B.C.Chang, Rediscovering the

Rooker Doctrine, 31 HASTINGS L.J. 1337,

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

courts could readily annul the judgments

of each other on the merits, the

prerequisite of finality in the judicial

system would be destroyed.”); 18 JAMES

WM. MOORE ET AL., MOORE’S FEDERAL

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

Under Rooker-Feldman, lower

federal courts cannot entertain a

constitutional claim if it has been

previously adjudicated in state court, or if

the relief requested in the claim requires

either determining that the state court's

decision is wrong or voiding the state

court’s ruling. Gulla v. North Strabane

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