United States v. Paul Johnson, Jr., 921 F.3d 991

Background

At ~4:00 a.m. in a high‑crime area, officers responded to a burglary report describing a black male in a white shirt; they found Paul Johnson matching that description in a dark alley, detained him, ordered him to the ground, handcuffed him, and frisked him.
During the frisk Officer Williams felt what he immediately recognized as a round of .380 ammunition covered by a nylon holster, reached into Johnson’s pocket, and removed the round and the empty holster.
After canvassing the immediate area the officers discovered two pistols (one .380) within a foot of where Johnson had been standing; the guns were stolen.
Johnson was later indicted under 18 U.S.C. § 922(g)(1) (felon in possession); he moved to suppress the pistols, the round, the holster, and derivative statements. The district court denied suppression; a panel reversed; the court granted rehearing en banc.
The en banc Eleventh Circuit considered whether, when an officer feels a bullet during a lawful Terry frisk, the officer may seize the ammunition and a holster; the court affirmed the denial of suppression, holding the seizure reasonable under Terry.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (Government/Officer)	Held
1) Was it lawful during a Terry frisk to remove the round of ammunition and holster from Johnson’s pocket?	Seizing a freestanding round (not a gun) exceeded Terry’s scope because ammunition is not a weapon and posed no immediate risk given Johnson was handcuffed and secured.	Officer reasonably believed the round indicated a nearby firearm and that seizing the round and holster was a protective measure reasonably related to officer safety.	Yes. The en banc court held the seizure was permissible: an officer may seize ammunition during a frisk when removal is reasonably related to officer/ public safety under the totality of circumstances.
2) Does Terry permit seizure of nontraditional items (e.g., ammunition) or is the frisk limited to “weapons” narrowly defined?	Terry should be read narrowly to permit only weapons; parts like bullets are not weapons and cannot be seized absent probable cause.	Terry’s protective-search rationale extends to objects that reasonably threaten officer safety or facilitate locating a weapon; bullets can be integral to lethality and thus seizable when reasonably perceived as such.	The court reaffirmed Terry’s safety rationale and held that officers may seize ammunition when the removal is reasonably related to protecting officers and others.
3) Should the court adopt a categorical rule for ammunition or apply a fact‑specific totality test (and should originalist arguments limit Terry)?	Urged limitation of Terry on originalist grounds and warned against expanding Terry to permit categorical seizure of ammunition.	Government relied on a reasonable‑officer, factbound analysis; concurring judges advocated a categorical rule but majority tied the result to the facts.	The majority applied a totality‑of‑the‑circumstances approach to the case facts but declined to overrule Terry; concurring opinions favored a categorical rule for bullets.

Key Cases Cited

Terry v. Ohio, 392 U.S. 1 (1968) (establishes stop‑and‑frisk rule: limited pat‑down for officer safety)
Minnesota v. Dickerson, 508 U.S. 366 (1993) (frisk must be limited to protective search; plain‑feel contraband rule)
United States v. Clay, 483 F.3d 739 (11th Cir. 2007) (officer may reach into pocket to remove object he reasonably believes may be a weapon)
United States v. Ward, 23 F.3d 1303 (8th Cir. 1994) (officer justified in retrieving suspected shotgun shells in pocket)
United States v. Miles, 247 F.3d 1009 (9th Cir. 2001) (frisk exceeded Terry where officer manipulated a small box of bullets not immediately identifiable as a weapon)
Michigan v. Long, 463 U.S. 1032 (1983) (handcuffing or control does not invariably eliminate officer safety concerns)