1

Pursuant to Fed. R. Crim. P. 12(d), the court sets forth in

this memorandum opinion and order its essential findings.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:06-CR-016-D

VS. §

 §

CHARLTON WESLEY JOHNSON, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The dispositive question presented by the instant motion to

suppress is whether, under the totality of the circumstances,

police had reasonable suspicion from the inception to effect a

traffic stop of defendant’s vehicle, which led to a warrantless

search and the discovery and seizure of a gun, marihuana, cash, and

drug paraphernalia. Paradoxically, had police been slower to

respond to a domestic disturbance call and to effect the stop, they

likely would have had reasonable suspicion, if not probable cause,

to stop the vehicle, make an arrest, and conduct a

constitutionally-permissible warrantless search. Given the limited

grounds, however, on which the government relies to justify the

search and seizure and the evidence developed at the suppression

hearing, the court is constrained to find, for the reasons that

follow,1 that the motion must be granted.

 

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2

Bonet also testified that, although he normally would have

broadcast the name of the suspect, he could not be positive whether

he did so in this instance. Officer Glover likewise could not

recall whether he received this information. Whether Bonet relayed

the name to Officer Glover is immaterial to the court’s decision.

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I

On June 16, 2005, at approximately 5:30 a.m., Charles Bonet

(“Bonet”), a 911 operator for the City of Balch Springs, Texas,

received a family disturbance call. A female juvenile informed

Bonet that her parents were fighting. The juvenile seemed upset,

and Bonet thought she might be overhearing their altercation.

Bonet dispatched the beat officer, Officer James Glover (“Officer

Glover”), and a backup officer, Officer Matt Palfreyman (“Officer

Palfreyman”), to the residence in Balch Springs. It is Balch

Springs policy for two officers to respond to a domestic

disturbance call. 

During the 911 call, the juvenile informed Bonet that the male

participant——who turned out to be defendant Charlton Wesley Johnson

(“Johnson”)——was leaving the residence in a black vehicle.

Subsequently, a female adult got on the telephone with Bonet,

identified herself, and reported the male “had pulled a gun on

her.” Bonet broadcast to the field officers the information about

the black vehicle, and he informed them that a firearm might be

involved.2

 Although it can be inferred from Bonet’s testimony that

he broadcast the information about the suspect and vehicle somewhat

contemporaneously with the information that the suspect had pulled

 

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3

Moreover, the manner in which Office Glover approached

Johnson’s vehicle following the stop, and the action he took once

advised of the possible presence of a gun, corroborate that he was

unaware when he made the traffic stop that Johnson might have a

weapon.

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a gun during the dispute, as will be shown below, the hearing

evidence shows that the information about the gun was not relayed

to Officer Glover until after he had stopped Johnson’s vehicle.3

When Officer Glover received Bonet’s initial report of the

domestic disturbance, he was approximately one-half mile away from

the residence. Because he was alone, and since Balch Springs

policy required that two officers respond to a domestic disturbance

call, he pulled into a restaurant parking lot within a few hundred

feet of the only entrance to the residential subdivision. After

sitting there for approximately one to two minutes while awaiting

the arrival of a backup officer, Officer Glover observed a black

vehicle exit the subdivision. Officer Glover was the beat officer

for this subdivision. Based on his knowledge of the location of

the residence and of the time of the dispatch, the time the vehicle

exited the subdivision was consistent with the time that it would

have taken the vehicle to travel from the residence to the

entrance.

The black vehicle turned onto Lake June Road and began

accelerating. Officer Glover felt that if he did not immediately

start to follow the vehicle, he would not have the chance to stop

it. At this point in time, however, Officer Glover had been

 

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4Officer Glover testified that the acceleration occurred in

the City of Dallas and that he lacked authority to stop someone for

a traffic violation committed in Dallas, but these facts are

essentially immaterial since he did not stop Johnson for speeding.

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dispatched to the residence where the domestic disturbance had

reportedly occurred, he had not been advised of any details of the

disturbance, he knew only that the black vehicle was being driven

by a male who had been involved in a family altercation, and the

911 operator had not alerted him to stop the vehicle or arrest the

driver.

Officer Glover clocked Johnson driving about 35 m.p.h. when he

exited the subdivision and then about 40 m.p.h. when he left the

Balch Springs city limits, which are situated on Lake June Road

about one block from the entrance to the subdivision. Johnson then

accelerated so that Officer Glover was driving 65 m.p.h. just to

catch up and close the distance between the two vehicles before

initiating the stop. Before he activated the lights on his police

unit, he was traveling 50 m.p.h., which is in excess of the posted

speed limit. Officer Glover acknowledged that he did not stop

Johnson because he was speeding.4 He did so because the black

vehicle had been involved in the domestic dispute.

Officer Glover’s unit is equipped with a video camera that

recorded the stop, ensuing arrest, and search. The government

introduced the video as Gov’t Ex. 1. Within about ten seconds of

exiting his unit, Officer Glover approached Johnson’s vehicle and

 

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asked him whether he had had problems with his wife today. He did

this to verify that he had the right person. Johnson responded

that he had, but he repeatedly denied that he had done anything

wrong. Officer Glover did not display a weapon or ask Johnson

immediately to exit his vehicle before questioning him. Officer

Glover then requested Johnson’s driver license, which identified

him as Johnson. About three minutes into the stop, Officer Glover

checked Johnson’s driver license through Bonet, who cleared the

license, meaning there were no pending cases, no outstanding arrest

warrants, and no warrants for traffic violations.

While Officer Glover was standing by the driver’s door of

Johnson’s vehicle, Bonet asked Officer Glover over the police radio

whether he was “1012,” which is a coded way of asking whether

someone could overhear police radio traffic. Officer Glover asked

Bonet to wait, and he walked back to his police unit, where he

learned from Bonet for the first time that a gun had been used in

the domestic disturbance and it was therefore possible that Johnson

might be armed. This meant to Officer Glover that, for officer

safety, he needed to pat Johnson down and check the immediate area

in his car for the presence of weapons. 

Officer Glover checked with his sergeant to see if he wanted

him to do a pat down or felony stop due to the presence of the

weapon. He then returned to Johnson’s vehicle. Because he was

concerned that Johnson might flee, Officer Glover did not draw his

 

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weapon. He instructed Johnson to exit his vehicle, and he patted

him down, finding no weapons. Officer Glover then instructed

Johnson to step to the rear of his vehicle while he checked for the

presence of weapons near the area where he was seated. By now

Officer Palfreyman and Sergeant Roger Hunt (“Sergeant Hunt”) had

arrived at the scene, and Officer Palfreyman guarded Johnson while

Officer Glover and Sergeant Hunt searched the front passenger

compartment of the vehicle. Officer Glover discovered a loaded

Colt .45 caliber pistol wedged between the right side of the

driver’s seat and the center console. The handle of the pistol

protruded slightly from between the seat and console approximately

one-half inch or less.

The officers then handcuffed Johnson and placed him under

arrest for unlawfully carrying a firearm, and Officer Glover read

him his Miranda rights. The officers called for a wrecker from

police dispatch and commenced an inventory search of the vehicle.

It is established policy in the City of Balch Springs that police

inventory a vehicle when there is an arrest. The officers

discovered and seized over $1,000 in cash, quantities of marihuana,

and drug paraphernalia (i.e., a scale and plastic baggies). These

items were not in plain view.

Johnson was later indicted for the offenses of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

possession of marihuana with intent to distribute, in violation of

 

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5Johnson maintains that “[t]he officers found the firearm in

this case as a result of an unlawful search and seizure and

therefore, the firearm (and marijuana) must be suppressed.” D. Br.

2. 

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21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). On March 27, 2006 he filed a motion to suppress,

in which he seeks to suppress the weapon and marihuana.5

 The court

conducted an evidentiary hearing on April 18, 2006.

II

 The Fourth Amendment protects individuals

against unreasonable searches and seizures.

Traffic stops are deemed seizures for the

purposes of the Fourth Amendment. The

legality of a traffic stop is analyzed under

the framework articulated in Terry v. Ohio,

392 U.S. 1 (1968). Under the two-part Terry

reasonable suspicion inquiry, we ask whether

the officer’s action was: (1) justified at its

inception; and (2) reasonably related in scope

to the circumstances which justified the

interference in the first place. . . . For a

traffic stop to be justified at its inception,

an officer must have an objectively reasonable

suspicion that some sort of illegal activity,

such as a traffic violation, occurred, or is

about to occur, before stopping the vehicle.

The Supreme Court has stated that in making a

reasonable suspicion inquiry, a court must

look at the totality of the circumstances of

each case to see whether the detaining officer

has a particularized and objective basis for

suspecting legal wrongdoing. We have stated

previously that reasonable suspicion exists

when the officer can point to specific and

articulable facts which, taken together with

rational inferences from those facts,

reasonably warrant the search and seizure. In

evaluating the totality of the circumstances,

a court may not consider the relevant factors

 

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in isolation from each other. In scrutinizing

the officer’s basis for suspecting wrongdoing,

it is clear that the officer’s mere hunch will

not suffice. It is also clear, however, that

reasonable suspicion need not rise to the

level of probable cause.

United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)

(internal quotations marks and some citations omitted), cert.

denied, ___ U.S. ___, 126 S.Ct. 1449 (2006). 

The government bears the burden of establishing by a

preponderance of the evidence two elements under Terry: that the

stop was justified at its inception and that the Fourth Amendment

intrusions were reasonably related in scope to the circumstance

that justified the interference in the first place. See United

States v. Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003); United

States v. Riley, 968 F.2d 422, 424-25 (5th Cir. 1992) (addressing

warrantless search of home) (“Because a warrantless search is

presumed to be unreasonable, the Government has the burden of

proving that the warrantless search was conducted pursuant to an

exception.”). For a stop to be justified at its inception, “the

officer [must have] a reasonable suspicion supported by articulable

facts that criminal activity may be afoot.” United States v.

Neufeld-Neufeld, 338 F.3d 374, 378 (5th Cir. 2003) (quoting United

States v. Sokolow, 490 U.S. 1, 7 (1989)). “The concept of

reasonable suspicion . . . is not ‘readily, or even usefully,

reduced to a neat set of legal rules.’” Sokolow, 490 U.S. at 7

(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). “[T]he

 

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6The entirety of the government’s argument that the stop was

reasonable based on the domestic disturbance call is set forth

below.

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facts giving rise to reasonable suspicion ‘must be judged against

an objective standard.’” United States v. Ibarra-Sanchez, 199 F.3d

753, 758 (5th Cir. 1999) (quoting Terry, 392 U.S. at 21-22).

“[T]he constitutional reasonableness of the stop does not depend

upon the actual motivations of the officer involved.”

Sanchez-Pena, 336 F.3d at 437.

III

A

The government in its pre-hearing response brief advanced two

alternative contentions for why the stop of Johnson’s vehicle was

justified at its inception. First, and primarily, it contended

that Officer Glover observed Johnson speeding, and therefore had a

basis to stop him for a traffic violation committed in the

officer’s presence. See Gov’t Br. 6 (citing Tex. Transp. Code Ann.

§ 545.352 (Vernon Supp. 2005)). At the hearing, however, Officer

Glover candidly testified that he did not stop Johnson for speeding

but instead did so because his vehicle was involved in the domestic

disturbance. Second, the government contended that “Officer Glover

had reasonable suspicion to believe that the occupant of the

vehicle was the individual who was involved in the aggravated

assault call.” Id. at 7. The court will therefore address the

government’s alternative argument.6 In doing so, the court will

 

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In addition, Officer Glover had reasonable

suspicion to believe that the occupant of the

vehicle was the individual who was involved in

the aggravated assault call. The Fifth

Circuit has explained [block quotation from

Lopez-Moreno omitted]. Here, the totality of

the circumstances show that Officer Glover had

a “particularized and objective basis” for

suspecting legal wrongdoing. Officer Glover

was dispatched to 2404 Spring Meadow in Balch

Springs, Texas, and was parked [next] to the

only possible exit from the subdivision. He

was informed that the individual who committed

the assault on his wife was leaving the

subdivision in a black car and, a short time

later, saw a black car leave the only exit of

the subdivision and accelerate rapidly.

Accordingly, Officer Glover had sufficient

reasonable suspicion to justify the traffic

stop.

Gov’t Br. 7-8.

- 10 -

evaluate the evidence under the totality of the circumstances to

determine whether Officer Glover had a reasonable suspicion that

supported the stop of Johnson’s vehicle.

B

Officer Glover testified that he effected the stop because he

had received a dispatch of a “domestic disturbance” at a residence,

and the black vehicle was involved in the dispute. Notwithstanding

Johnson’s contrary argument, the court finds that it was reasonable

for Officer Glover to suspect that the black vehicle that he

observed exiting the subdivision was the same one that dispatch had

reported was involved. Officer Glover was the beat officer for the

housing subdivision and very familiar with it, the subdivision was

 

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relatively small, and it had but one entrance. He arrived near the

entrance very soon after he received the dispatch, the time the

vehicle exited the subdivision coincided with the time that would

have elapsed for travel from the residence in question to the

entrance, and at the early hour of approximately 5:45 a.m., it

would be unlikely that another black vehicle would exit the small

subdivision at precisely, or very close to, the same time. 

This finding, however, although pertinent to one of the

principal grounds of Johnson’s suppression motion, does not answer

the dispositive question. Officer Glover must still be able to

point to specific and articulable facts that, taken together with

rational inferences from those facts, gave him an objectively

reasonable suspicion——prior to stopping the vehicle——that criminal

activity was afoot——i.e., that the person stopped had committed,

was in the process of committing, or in the future would commit a

crime. The stop must have been justified from its inception. He

failed to do so. 

Officer Glover did not testify that, when he responded to the

dispatch, he suspected that any crime had been, was being, or would

be committed. He simply stated that he stopped Johnson’s vehicle

because it was involved in the domestic dispute. Essentially,

Officer Glover, who was dispatched to a residence to handle a

domestic disturbance and was waiting for a backup officer, decided

to effect a stop of one of the persons allegedly involved in the

 

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7

The court in no way intends to minimize the serious nature of

domestic disturbances and the abusive conduct to which some

participants (often women) are subjected. Here, however, the

government failed to adduce evidence that, at the inception of the

stop, Officer Glover had a basis reasonably to suspect that Johnson

had engaged in criminal conduct.

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disturbance. But when he did so, he had no information that the

person had committed a crime or, for that matter, had done anything

more than participate in an altercation.7

 

Moreover, the government did not elicit testimony from Officer

Glover about his past experiences responding to domestic

disturbance calls during his more than eighteen years as a Balch

Springs police officer. Such testimony might have established,

under the totality of the circumstances, that he reasonably

suspected that Johnson had in fact engaged in criminal conduct,

even if his knowledge would have been insufficient to rise to the

level of probable cause. Cf. Sanchez-Pena, 336 F.3d at 437 (“We

traditionally give due deference to the experience of officers

. . . in identifying a number of factors that, although

insufficient by themselves to suggest illegal activity, taken

together are indicia of certain types of illicit acts.”). 

In other cases where courts have concluded that officers

possessed reasonable suspicion to stop suspects in response to 911

domestic disturbance calls, the officers articulated important

facts that are not present here. In United States v. Dotson, 102

Fed. Appx. 508 (7th Cir. 2004) (per curiam) (unpublished order),

 

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rev’d on other grounds, 543 U.S. 1110 (2005), the officers received

a bystander tip that a participant in a domestic dispute had a gun.

Id. At the time of the instant stop, however, Officer Glover

lacked this crucial piece of information. Cf. United States v.

Pardue, 270 F.Supp.2d 61, 65 (D. Me. 2003) (upholding investigative

detention of defendant based on reasonable suspicion where officer

responding to domestic disturbance dispatch had “reasonable

suspicion to believe that an assault may have been committed based

on the dispatcher’s report that an object, in this case a lighter,

had been thrown at the complainant”), aff’d, 385 F.3d 101 (1st Cir.

2004), cert. denied, 543 U.S. 1169 (2005). In United States v.

Lincoln, 141 Fed. Appx. 634 (9th Cir. 2005) (per curiam)

(unpublished mem.), cert. denied, ___ U.S. ___, 126 S.Ct. 1177

(2006), in responding to a domestic disturbance call, the officers

had responded the night before to a similar domestic disturbance at

the same residence and knew the suspect was an alleged drug dealer,

that drug dealers often carry guns, and that domestic disturbances

often escalate into violent situations. Id. at 635-36. Here,

Officer Glover stated that he had never met Johnson before the

stop, and he did not mention that he suspected that the driver of

the black vehicle was a drug dealer.

At the hearing, the government contended that Officer Glover

had reasonable suspicion to stop the black vehicle because he

suspected that the occupant had committed an aggravated assault

 

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8

Although not binding authority on this court, the decision in

McCraw v. Texas, 117 S.W.3d 47 (Tex. App. 2003, pet. denied), is

instructive. In McCraw the court of appeals reversed a conviction

for unlawfully carrying a firearm, concluding that the defendant’s

motion to suppress should have been granted. Id. at 50, 55. In

McCraw a deputy responded to a domestic disturbance call. En route

he encountered the defendant, who had left the residence and had

signaled the deputy, and determined from questioning him and from

a plain view search of his vehicle that he did not possess a

weapon. The deputy arrested the defendant in front of his home,

however, after the dispatcher notified the deputy that the victim

had not been injured but that the defendant might have a weapon.

Id. at 53. 

So far as pertinent to the present case, the court of appeals

held that the defendant’s warrantless arrest was unlawful. Id. at

54. Because he was arrested before deputies located a weapon in

his vehicle, the discovery of the weapon could not serve to support

probable cause for the arrest. The court therefore addressed

whether the deputy could have arrested the defendant based on the

available facts and circumstances concerning the alleged commission

of an assault. The court reasoned that, in Texas, a police officer

may only arrest an individual without a warrant if there is

probable cause with respect to that individual, and the arrest

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under Texas law. The court disagrees. The evidence establishes

that Officer Glover did not learn about the possible use of a gun

during the domestic disturbance until after he had effected the

stop. The manner in which Office Glover approached Johnson’s

vehicle following the stop, and the action he took once advised of

the possible presence of a gun, corroborate that he was unaware of

the possible presence of a weapon when he stopped Johnson’s

vehicle. The evidence that the government developed at the hearing

reflects no reasonable basis for Officer Glover to suspect that an

aggravated assault had occurred before he stopped Johnson. Indeed,

Officer Glover never testified that he thought the driver of the

black vehicle was involved in an aggravated assault.8

 

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falls within one of the exceptions specified in the Texas Code of

Criminal Procedure. In the context of McCraw, for the officer to

have effected a warrantless arrest for an assault, the assault must

either have occurred in the officer’s presence or view or he must

have had probable cause to believe that the assault resulted in

bodily injury to a member of the suspect's family or household.

Id. Based on the 911 call and the deputy’s encounter with the

defendant, the deputy had probable cause to believe the defendant

had been involved in a domestic disturbance. But the alleged

assault did not occur in the deputy’s presence or view. And before

arriving at the residence, the deputy was informed that the victim

had not suffered bodily injury. The court therefore held that,

absent a warrant, the deputies could not lawfully arrest the

defendant for assault. Id. Because the defendant was illegally

arrested before the deputies searched his vehicle, the search of

his van was also unlawful. Id. at 54-55. 

Although McCraw can be distinguished from the present case

(for example, it addresses probable cause rather than reasonable

suspicion), it tends to corroborate why Officer Glover would have

lacked a legal basis to stop Johnson based merely on the report

that he had been involved in a domestic dispute. McCraw supports

rejecting the government’s assertion that Officer Glover could have

reasonably suspected that Johnson had left the scene of an

aggravated assault where there was no indication that he had

brandished a weapon or inflicted bodily injury. 

- 15 -

At the time he effected the stop, Officer Glover had no

information that the alleged victim in the domestic dispute had

suffered any bodily injury, or that Johnson had possessed (and

might still have) a weapon, or that Johnson had committed an

aggravated assault by brandishing a weapon. In the circumstances

of this case, the absence of this information is critical to the

court’s finding that the stop was effected without reasonable

suspicion. Without knowing that a gun was involved (or, for that

matter, any other suspicious facts), Officer Glover lacked

reasonable suspicion that activity that was criminal in nature was

 

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9The court is aware that there are instances where the

collective knowledge doctrine applies and the government can rely

on the collective knowledge of police officers rather than the

knowledge of the officer who made the stop. The government does

not contend, however, that it relies on the knowledge that 911

operator Bonet may have had that a gun was involved in the domestic

dispute, even if Officer Glover was not yet aware of that fact. It

has therefore waived this argument. Moreover, the government

failed to proffer evidence from which a reasonable inference could

be drawn that Bonet in fact knew that the gun was involved in the

domestic disturbance before Officer Glover effected the stop. It

is more reasonable to infer that this type of information would

have been relayed immediately to officers in the field. And

Officer Glover was not advised that Johnson might be armed until

after he stopped his vehicle. Furthermore, had the argument been

made and not waived, the government would then be obligated to

demonstrate that the collective knowledge doctrine should extend to

a 911 operator who had one week of training for that position and

as to whom there was no evidence that he had any law enforcement

training. See United States v. Colon, 250 F.3d 130, 137 (2d Cir.

2001) (holding that 911 operator’s knowledge could not be relied on

to satisfy collective knowledge requirement absent evidence that

operator was capable of determining whether there was reasonable

suspicion for stop and frisk).

- 16 -

afoot.9 Officer Glover articulated no reasons to suspect that the

driver of the black vehicle had committed, was in the process of

committing, or in the future would commit a crime. Having analyzed

the evidence under the totality of the circumstances, the court

finds that the government has failed to meet its burden of proving

by a preponderance of the evidence that the stop of Johnson’s

vehicle was based on reasonable suspicion.

C

The court is of course aware that “[t]he Supreme Court has

established four exceptions to the exclusionary rule that allow for

the admission of evidence” obtained in violation of the Fourth

 

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Amendment. United States v. Sheppard, 901 F.2d 1230, 1234 (5th

Cir. 1990). And, in deciding this motion, the court has not

disregarded the possibility that an exception could have applied

had it been raised. For example, as the court notes above,

paradoxically, had Officer Glover been slower to respond to the

domestic disturbance call, he would likely have learned of the

allegation that Johnson had used a weapon during the domestic

disturbance and would have had reasonable suspicion, if not

probable cause, to effect the stop. But the government did not

contend——either in its pre-hearing brief or during argument at the

suppression hearing——that any exception applies in this case.

Because the government has the burden of proving that an exception

to the exclusionary rule applies, see, e.g., Riley, 968 F.2d at

424-25, the court assumes the government determined that it cannot

justify such an exception. It therefore waived any argument that

an exception to the exclusionary rule applies in this case.

Because Officer Glover lacked reasonable suspicion from the

inception to stop Johnson’s vehicle, the arrest and search that

followed violated the Fourth Amendment. See, e.g., United States

v. Jaquez, 421 F.3d 338, 341-42 (5th Cir. 2005) (per curiam)

(holding that police did not have reasonable suspicion to make

investigative stop of defendant’s car and that stop and subsequent

search violated defendant’s Fourth Amendment right to be free of

unreasonable searches and seizures). Johnson’s motion to suppress

 

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the weapon and marihuana seized during the search must be granted.

* * *

For the reasons stated, the court grants Johnson’s March 26,

2006 motion to suppress.

SO ORDERED.

April 20, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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