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Reaching into a pants pocket to seize a bullet exceeded the constitutional pat down search

In U.S. v. Johnson the court of appeals found an officer conducted an unconstitutional search and seizure when he removed a round of ammunition from the defendant’s pocket after conducting a pat down of the defendant who was a burglary suspect.  The facts show the Opa-Locka, Florida, Police Department received a 911 call about a potential burglary in progress at a multifamily duplex.  Behind the duplex was a fence that separated the duplex from the adjacent property.  The 911 caller described a black male wearing a white shirt trying to get through the window of a neighbor’s house.

Soon after officers arrived, the defendant was seen coming from the back of the complex through an alley.  He fit the description of a black male wearing a white shirt,   He was ordered to the ground and handcuffed and detained until they could figure things out.  Because of the nature of the call and the high crime nature of the area, the officer conducted a pat down of Mr. Johnson for officer safety.  The officer felt a nylon piece of material and then underneath it he felt a hard-like, oval-shaped object which led him to believe it was ammunition.  He removed it thinking that there might be a weapon nearby or another person in the apartment that may come out with “something.”  It was a black nylon pistol holster and one round of .380 caliber ammunition.

A search of the area turned up a firearm which Johnson later admitted he had possessed.  Johnson was subsequently indicted for being a felon in possession of a firearm and ammunition in violations of a firearm and ammunition.  He moved to suppress the evidence and statements derived from the pat down leading to the seizure of the firearm and ammunition, arguing the officers lacked probable cause to search him without a warrant, that the search was not incident to arrest and he did not consent.

In this appeal the issue was whether there was sufficient basis to justify the pat down and whether the officer was permitted to reach into his pocket following the frisk of the outer clothing where the officer recognized the object he felt as a single round of ammunition absent a firearm.  The district court denied the motion to suppress finding that the officer conducting a pat-down had a reasonable suspicion to believe his safety and the safety of others was at risk in light of the circumstances of the area.  The district court also concluded that the decision to search the interior of his pocket and remove the ammunition and holster was a permissible continuation of the initial frisk.

The court of appeals concluded that given the totality of the facts the initial pat down was permitted under the Fourth Amendment.  However, the appeals court found that the officer’s decision to reach into Johnson’s pocket and retrieve the round of ammunition and nylon holster did exceed the lawful scope of the protective search. The officer’s search into his pocket violated the Fourth Amendment.  A single round of ammunition did not pose a reasonable expectation of the presence of a firearm was insufficient to justify the seizure of the bullet and holster from his pocket.