United States District Court, N.D. Mississippi
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
case, Antonio Leshun Johnson is charged with one count of
unlawfully possessing a firearm as a convicted felon.
See Indictment ; 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 . Now before the
Court is Johnson’s Motion to Suppress  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
and Procedural Background
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.” 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.
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.
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.
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.
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
before the Court is Johnson’s Motion to Suppress 
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.
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.
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.
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