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United States v. Johnson

United States District Court, N.D. Mississippi

September 23, 2019

UNITED STATES OF AMERICA
v.
ANTONIO LESHUN JOHNSON DEFENDANT

          ORDER AND MEMORANDUM OPINION

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE

         In this case, Antonio Leshun Johnson is charged with one count of unlawfully possessing a firearm as a convicted felon. See Indictment [16]; 18 U.S.C. § 922(g)(1); 18 U.S.C. § 924(a)(2). Johnson entered a plea of not guilty on May 17, 2019. See Waiver [17]. Now before the Court is Johnson’s Motion to Suppress [26] all the evidence seized from him by the Hernando Police Department, namely two firearms, two ammunition magazines, a vertical fore grip, rail late, laser, and ammunition casing catcher. Both Johnson and the Government filed briefs on the issues. The Court convened a hearing on August 29, 2019 and heard oral argument and testimony from five witnesses, including Johnson.

         Factual and Procedural Background

         Early on the morning of May 12, 2019, Hernando police dispatch received a 911 call reporting that there was a vehicle stopped in the right lane of West Commerce Street “just sitting there.”[1] The dispatcher relayed the information over the police radio and three officers responded. Officer Bell was the first to arrive on the scene. According to Bell, when he arrived on the scene, he observed a black Ford Taurus stopped in the right-hand lane of the road with the engine running. Bell approached the driver’s side door and observed Johnson slumped over the steering wheel, apparently unconscious. Bell also observed that Johnson had his foot on the accelerator, the engine was racing, and steam or smoke was coming out from under the hood of the vehicle with antifreeze pooling on the ground. According to Bell, he knocked on the driver’s window in an attempt to rouse Johnson to no avail. After several unsuccessful attempts to rouse Johnson, Bell opened the car door, put his hand on Johnson’s shoulder and shook him. At this point, Johnson woke up. According to Bell, Johnson then put his hand on the gear shift lever, and to prevent Johnson from shifting the vehicle into drive, Bell reached in, turned the ignition off, and removed the keys placing them on top of the car. Bell testified that at this point, Johnson was not free to leave. Bell asked Johnson why he was stopped in the middle of the road. At first Johnson did not respond, but eventually Johnson responded that he was just trying to get home. According to Bell, Johnson’s speech was slurred.

         Around this time, two additional officers, Algee and Cunningham, arrived on the scene. Cunningham approached the driver’s side door of Johnson’s car and took over the scene from Bell. According to Cunningham, as he approached Johnson’s car from the rear, he observed that the car had a California license plate, and that the registration was expired. Cunningham engaged Johnson in a conversation and also observed that his slurred speech. Cunningham asked Johnson to get out of his car and to step to the rear of the vehicle. Cunningham continued to question Johnson as to why he was stopped in the roadway, and observed that Johnson was wearing two pairs of pants, or a pair of shorts under his pants, and had an impression or bulge on one side consistent with the shape and size of a firearm. According to the Officers, Johnson also appeared agitated and continued to exhibit slurred speech.

         Johnson explained that he was trying to get home after a long night working. Cunningham testified that he offered Johnson a courtesy ride home. Johnson denies ever being offered or accepting a courtesy ride.

         After noticing the bulge in Johnson’s front pocket, Cunningham initiated a pat-down of Johnson’s person, directing him to raise his hands and to turn his back. Cunningham immediately felt a gun in Johnson’s pocket, detained Johnson, and retrieved a pistol from Johnson’s inner pocket. Johnson complied with the search.

         After discovering the weapon and detaining Johnson, the officers asked the dispatcher to search Johnson’s credentials in National Crime Information Center (NCIC) database. The dispatcher testified that the results showed that Johnson was a convicted felon. At this time, the officers placed Johnson under arrest. After conducting a search of the automobile, the officers found another gun, gun paraphernalia, and other miscellaneous items.

         Now before the Court is Johnson’s Motion to Suppress [26] any and all evidence found. Johnson maintains that he was merely a distressed motorist, and that the Officers violated his Fourth Amendment rights because neither reasonable suspicion nor probable cause existed when the officers seized and searched his person and automobile.

         Analysis and Discussion

         The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. U.S. Const. Amend. IV. The United States Supreme Court has held that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Here, the officers searched Johnson’s person and automobile without a warrant. Thus, the Government bears the burden of proving that the officers’ conduct did not violate the Defendant’s constitutional rights.[2]

         The Government argues that the initial contact between the officer and defendant was a consensual encounter and does not require Fourth Amendment scrutiny. Alternatively, the government contends that the Officers’ conduct was constitutional under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court has held that, “the Fourth Amendment’s requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Accordingly, the Court must first determine whether a seizure occurred.

         i. Seizure

         The Fifth Circuit recognizes three levels of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) so-called Terry stops or brief “seizures” that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. United States v. Berry, 670 F.2d 583, 591 (5th Cir. 1982); United ...


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