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

In U.S. v. Johnson the Eleventh Circuit court of appeals reversed a panel decision which held that 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 en banc court decided that the seizure of the ammunition was a constitutional search under Terry v. Ohio. 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.

Given the concrete factual circumstances here, the federal court saw the issue as whether the pat down frisk and the officer’s reaching into his pocket following the frisk was a permissible search under Terry v. Ohio. The district court denied the motion to suppress finding that the officer had a reasonable suspicion to believe his safety and the safety of others was at risk considering the circumstances of the area. The appeals court agreed with the district court’s conclusion 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 reversed the appellate panel and concluded that given the totality of the facts the initial pat down was permitted under the Fourth Amendment and the officer’s decision to remove the round of ammunition was reasonably related to the protection of the officers and others.