United States v. Jermane E. Bonner

III. interpreter in the record that the CONCLUSION evidence court, federal was certified translate reasons, For all of the above we will § or other required 28 U.S.C. One, on affirm convictions Counts Two qualified compe to be wise determined Four; and the conviction vacate on Count 1827(d). However, § tent under U.S.C. trial; Five and remand for a new object to the district Haywood did not vacate conviction Count Seven interpreter nor decision to use the court’s judg- remand with directions enter a any concerning raise issue the inter did he ment of acquittal. qualifications in certification or preter’s Accordingly, court. he the district has Hsu, States this issue. United v.

waived (3d Cir.1998) (citing

155 F.3d City Philadelphia, 35 F.3d

Harris (3d Cir.1994)).

840, 845 Haywood’s argument second is America, UNITED STATES of interpreter summa improperly Appellant testimony Santiago rized Rodri However, to tell

quez. he fails us what

testimony interpreter summarized or Jermane E. BONNER why alleged summary improper.

No. 03-1547. argument only slightly His third is of Appeals, States Court prior fanciful than the two. He less claims Circuit. Third interpreter cоnsistently that the translated Argued Sept. 2003. testimony in person. According the third Haywood, per translation in the third Filed: March son resulted because the confusion pronouns translator’s use of the “she” and Santiago

“her” referred not

Rodriquez, but female wit also other argument In support

nesses. of his Gomez, to United

cites States v. 908 F.2d (11th Cir.1990). Gomez, the inter

preter improperly equated “disco” with Lodge,” thereby corroborating pri-

“Elks testimony

or witness’s that was favorable Here, however, government.

to the there claim interpretation that the no any person

third corroborated other testi

mony, Haywood provide any fails examples of There

concrete confusion.

fore, help. Accordingly, Gomez does not not find violation process

we do due

involving interpreter. use Buchanan,

Mary Bonnie Esq., Beth R. Schlueter, Esq. (Argued), Office of United PA, Attorney, Pittsburgh, States Counsel Appellant. Hackney, Esq., W. Penn Karen S. Ger- (Ar- lach, Freeland, Esq., Esq. B. Lisa Defender, Federal gued), Office of Public PA, Pittsburgh, Appellee. Counsel for McKEE, COWEN, Before: SMITH ‍​‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌‌​​‌​‌​​‌​‌‌‌‌‌‌​​​​‌‌​​‌‍and Judges. Circuit COWEN, housing project Acres Judge. Township, Circuit Stowe Pennsylvania., approximately At 11:40 after Bonner fled Jermane p.m., Harbaugh sports Officer noticed a passengеr he was a the car which utility leaving housing vehicle project for a routine traffic violation. The stopped headlight expired that had one out and an and, upon apprehending police gave chase inspection signaled sticker. He for the ve- him, carrying that he crack discovered driver, Stewart, Nathan stop. hicle government prosecuted Bon cocaine. The driver, In complied. addition to the there possession for with the intent to dis ner brother, passengers: the driver’s were.two grams tribute 50 or more of crack cocaine Stewart, Neil in the back seat and Jer- 841(a)(1) § in violation of U.S.C. passenger 'mane in the front Bonner seat. (b)(1)(A)(iii). sup The District Court during stop all evidence seized the pressed Harbaugh approached As Officer including drugs. appeal by This vehicle, alight- driver’s side of the Bonner government followed. ed and ran. Officer .chased after Stewart foot, yelling him on him evidence, repeatedly suppressing In the District stop. in English gave Officer chase Court held that the officers lacked a rea car,, sonable, patrol driving in the suspicion direction Bonner activity. running, parked in criminal The Dis was then was involved continued trict reasoned that the sole basis for the chase on foot. stop flight police, from was Bonner’s English eventually caught Officer Bon- and that under Illinois v. by tackling ner him. Both officers then L.Ed.2d 570 subdued and handcuffed Bonner. While (2000), progeny, flight and its mere when him, subduing English Officer observed a on the police appear scene is not sufficient plastic bag clear Bonner’s hand. The suspicion.

to establish reasonable rocks, bag golf contained seven ball sized will reverse. the facts of this

We Under which were later tested and found to be case we hold that the officers had reason- crack cocaine. The officers also seized suspicion stop Although Bonner. able during from Bonner the arrest. $534.25 flight enough justify police alone is not passenger The driver and other were stop, flight upon this is not a case of put park, told to the vehicle turn off the noticing police. The officers this case ignition, step out of the vehicle. Both effectuating legitimate traffic stop. were handcuffed and detained for a brief During stop, police may a traffic officers time, period of then released with a cita- superintendence exercise reasonable over traffic for the violations. tion vehicle, driver, passengers. prevented Because Bonner jurisdiction We have under 18 maintaining oversight and control over the plenary § and conduct review U.S.C. stop by fleeing, we hold that of the District Court’s determination that had reasonable suspi did not have reasonable officers him. cion to Bonner. v. United Ornelas States, 1657, 134 517 U.S. (1996); United States Val Cir.2000). (3d entine,. Harbaugh,

On March Officers 232 F.3d 350 We Stewart, fact English, Sweeney findings were in review the District Court’s Ornelas, security at duty uniform and on at the for clear error. the entrance to the Ohioview 116 S.Ct. at 1663. booth stop may exercise executing officer such

II car over the superintendence matter, gov preliminary aAs Mimms, passengers. and its Under the District Court’s challenges ernment the driver out of the order high not a crime that the area was findings suspi- any particularized without vehicle area, stop, 11:40 the hour of the and that Mimms, cion. to the reasonable significant was not pm, Court extended Supreme at 333. The its con support suspicion inquiry. the officer to order bright line rule allow housing Acres tention that the Ohioview car- as well. out of the passengers area, govern high was a crime project Wilson, 408, 117 Maryland v. log of arrests made submitted a book ment Alterna- 137 L.Ed.2d three-year a housing project at over the may order all of the tively, the officer n - found, the the' Court period. As District. then- to remain in the car with occupants was an aver reflected that there log book Moorefield, States v. up. hands week, and that most per arrests age 1.3 Cir.1997). (3d addition, In the 111 F.3d 10 and for misdemeanors of the arrests were of the may pаt occupants down the officer num Considering the summary offenses. passen- a search of the and conduct vehicle housing pro people who live ber compartment, if he has reasonable ger found that this ject; the District Court might be suspicion occupants that n high neither a crime average reflected Long, v. dangerous. Michigan armed gov trafficking in narcotics. The area nor 1032, 1049-50, 103 S.Ct. clearly finding this was ernment contends (1983) (permitting erroneous, to a news article as points during stop); traffic search of vehicle pres level of crime evidence of further Mimms, 111-112, 98 at 434 U.S. at S.Ct. considering the ent in the area. Even upon (permitting pat of driver 334 down however, article, does the evidence news Ohio, Terry v. 392 suspicion); reasonable that the District compel the conclusion 1868, 1877, 1, 17, 88 20 L.Ed.2d U.S. S.Ct. housing that Court erred finding (1968); 111 at Moorefield, F.3d 13-14 889 The high not a crime area. project was passenger upon down of (permitting pat oc stop found that the did District Court suspiciоn). reasonable p.m., cur at but did not consider 11:40 analysis factor relevant to its of whether that the government asserts for the suspicion was reasonable there oth officers ordered Bonner and the compel The evidence does not stop. At stay in the vehicle. occupants er that the conclusion. We conclude different however, hearing, there was suppression was not finding by fact the District Court conflicting testimony whether the officers clearly erroneous. ran. The anything said before Bonner finding no with re District Court made , III what, spect anything, if the officers said got initial before Bonner out of vehicle It is uncontested that the purpose for the the Fourth ran. We will assume traffic was lawful under officers did not issue opinion A officer who ob Amendment. run began may traffic laws commands before serves a violation of state specific But absent a com committing ning. car viola even lawfully stop the Bonner, Mimms, mand,. undisputed an Pennsylvania tion. v. vehiсle, 330, 332, ran from occupant stopped 331 of the 54 L.Ed.2d legitimate with- that a the scene of a It is also well settled

217 wrongdoing, of the officers. other indicia of can out authorization or consent constitute Wardlow, officer has During stop, police such reasonable suspicion. authority duty to control the vehicle 676-77. “plus” at 120 S.Ct. at for a occupants, peri- at brief least mere presence factor Wardlow’s in an Officer prevented od of time.1 Bonner high area known for narcotics trafficking. stop by run- controlling Stewart Wardlow, 120 at U.S. S.Ct. purpose from the vehicle ning before holding flight plus presence In in a stop was even announced. high justified crime the stop, area explained, “the determination of Ohio, Under U.S. must suspicion reasonable be based on (1968), 20 L.Ed.2d and its S.Ct. judgments commonsense and inferences brief, conduct a progeny, officer Wardlow, human about behavior.” investigatory stop when that has “a 125, 120 at 676. reasonable, suspiciоn that crim Wardlow, activity is inal afoot.” Illinois officers in a eight four-car on a converged neighborhood caravan (2000). Although high known- for narcotics trafficking. demanding than is less area, Upon arriving in two of the offi- cause, the Fourth Amendment does re standing cers noticed the defendant near a making stop that an a quire have building, holding bag. a The defendant objective justification level of for that some looked the direction the officers and Sokolow, United States 490 stop. U.S. 122, then fled. 528 U.S. at 120 1585, 1, 7, 1581, 109 104 L.Ed.2d 1 S.Ct. ran, at 675. Before he the S.Ct. officers (1989). particular In a evaluating whether no suspect had reason to the defendant of justified, must look at stop courts any wrongdoing, legitimate had no totality of surrounding the circumstances him; to detain the defendant simply cause Sokolow, 8,109 stop. 490 S.Ct. U.S. possibility fled from the of a consensual Cortez, (quoting States v. at 1586 police. encounter with the 411, 417, 690, 695, U.S. 101 66 449 S.Ct. in an area presence Mere known 621(1981)). effectuating In a val L.Ed.2d high give for crime rise to does not reason stop, police allowed to id officers are use a Texas, suspicion stop. able for a Brown v. reasonable amount of force. Graham v. 47, 2637, 2641, 52, 443 U.S. S.Ct. 61 Connor, 99 1865, 386, 109 S.Ct. 104 (1979). L.Ed.2d 357 Police officers (1989). argues 443 Bonner approach without individuals reasonable alone, standing not sufficient to flight, cause, suspicion may ques engender suspicion part reasonable Indeed, such without implicating tion individuals police Supreme of a officer. Roy Fourth Florida v. Amendment. unprovoked has never Court held er, 1319, 1324, 491, 497, justify 103 S.Ct. enough stop. alone is a flight to (1983). held, however, An Supreme ap individual Court has flight upon plus manner “need not answer noticing police, proached some this Wilson, 408, 3, Supreme land v. 415 n. never addressed the 117 1. The has 882, whether, 3, during question of a lawful S.Ct. 886 n. L.Ed.2d 41 traffic 137 us, any passengers question stop, the could That is not before as Bonner fled detain Indeed, stop stop. purpose before the of the was an- entire duration of nounced, question explicitly oрen could exercise the Court left that before the by pas- it held that could order the initial control authorized Wilson and when sengers during stop. Mary- other out of the car a cases. 218 him; him. indeed, may stop had he cers

any question put questions stop drugs at all and Upon effectuating to listen to decline way.” revealed, may go Royer, on his 460 U.S. at to arrest. giving probable cause , Terry v. (citing 103 at 1324 en- judgment S.Ct. of the District Court 498 Ohio, 1, 32-33, February U.S. be re- tered on will (1968) (Harlan, J. 1885-86 L.Ed.2d 889 will be remanded to the versed. The case concurring); Terry, 392 U.S. at proceedings further con- District Court for (White, concurring)). J. opinion. sistent with this Moreover, to cooperate a refusal with the encounter, without police in consensual SMITH, Concurring. more, suspi cannot constitute reasonable “flight a non- agree Because from Bostick, stop. cion for Florida v. (in consensual, ‍​‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌‌​​‌​‌​​‌​‌‌‌‌‌‌​​​​‌‌​​‌‍legitimate which the officers are authorized to exert (1991) (citations omitted). and control over the occu supеrintendence ease, however, did car) pants gives of the rise to reasonable simply upon police, nor “noticing” flee join Judge opinion suspicion,” Cowen’s cooperate during refuse to simply did Maj. separately full. 217. I op. at write . consensual encounter. Bonner fled in the highlight implicated an issue stop, lawful traffic before the officers had have fact-finding District we Court’s which purpose the chance announce required not been address: whether re stop. fleeing despite He continued flight “plus” analysis under Ward peated stop, he did not orders low, running until he was tackled Officer government required the is English. flight from a lawful Bonner’s the criteria prove objective to existence of stop, flight pre traffic where that high a for what constitutes crime area discharging vented the from their area, in or stop that occurred such an duty maintaining oversight of and control that to government required rather is provided stop, over the traffic the officers effecting stop had a prove officers with reasonable basis reasonable articulable to believe further investigation. Flight for a they point in crime “high were a area.”2 (in non-consensual, legitimate traffic out I believe alterna because these are

which officers authorized exert require tives the District Court to conduct occu superintendence and control over the fundamentally inquiries, different even car) pants gives rise to reasonable though may the evidence offered for both suspicion. overlapping be or even identical. IV Here, the that “the District Court found By in flight government by prepon- reason of Bonner’s has hot shown a the offi- legitimate stop, course a derance the evidence that Ohio View crime, Judge "high qualify wheth- not a Cowen describes this factor as but does "high Maj. trafficking er the area was a area.”- narcotics area.” Because the test crime op. analysis, analysis, how- be for either howev- 215. The District Court’s should the same ever, er, only purposes was limited addressed the distinction is not more material "high trafficking purposes For of conti- whether this was a narcotics of this concurrence. (cid:127) then, many nuity, adopt Judge area.” are which articula- As there crimes do Cowen’s trafficking, question-whether was a involve narcotics an area tion of the area high "high could be one in which there a volume crime area.” is reviewing well elude untrained person.” is such an area.” After an See also Acres evidence, Arvizu, 266, 274, the relevant the District Court United States v. (2002) (offi- “hardly that evidence makes Ohio declared heavy crime and narcotics View Acres cers “draw on own experience their trafficking area.” specialized training to make inferences from and deductions about the cumulative in I am concerned about these What might information available to them that fact-finder’s fo- Wardlow-type сases is the (internal person.”) well elude an untrained judge, it be that of a federal cus: should omitted); quotation marks Ornelas operating within the confines of court- States, room, who believes the area be one (1996) 1657, 134 L.Ed.2d 911 (reviewing who, crime, that of a high court must give appropriate weight experience and an awareness of based factual by inferences drawn local law en- data, crime and arrest had a basis to form officers). way, forcement In the same an a reasonable articulable belief is officer is in the position know the rou- Obviously, such area? differences area, tines patterns geographic of a only of experi- focus are not differences prone and whether it is more to crime. perspective. judge engaged ence and A knowledge may This not be reflected on adjudicative fact-finding apply will stan- sheets, log arrest records and as arrests credibility proof dards of that differ are not indiсia of crime. cognitive processes from the of an officer case, we need not resolve the issue here. acting in the field. The touchstone of Ohio I agree that the evidence offered that a requirement court consider whether government compel does not the conclu- “the facts officer at the available sion that the District Court erred in find- moment of the seizure or the search ‘war- ing high that Ohio Acres was not a View rant a man of reasonable caution crime area. if And even the District Court appropri- action taken belief was required to determine whether the ate[.]” officers had a reasonable articulable basis (1968) States, (citing Carroll v. United area, high to believe it crime such 280, (1925); 45 69 L.Ed. U.S. S.Ct. 543 finding nothing would to the contribute Ohio, 89, 96-97, Beck v. S.Ct. 85 government result here has because (1964)). explained 13 L.Ed.2d As flight “plus” by demonstrated other evi- by Supreme Court in States v. dentiary means. Cortez, S.Ct. Finally, although join Judge I in Cowen (1981), an officer’s Court, I reversing the District echo the in- activity that criminal is afoot be in Judge expressed sentiments of McKee observations, by objective formed “various Part III of his dissent. police reports, information from if such are available, and of the modes It a judges consideration should be rare occasion when criticize, into, patterns operation thereby legiti- or of of certain kinds of and a intrude data, prosecutorial lawbreakers. From these a trained mate exercise of discretion. routinely officer draws inferences and makes Nor in our question deduc- should we might opinions policy Congress tions-inferences and deductions that decisions of us, 3. did not resolve this issue because crime area. the case before the District Wardlow appears dispute that in that case there was no Court did a factual on this confront dispute place high that a took in issue. traditionally possibly “for purposes investigating to federalize what has been no though criminal behavior even there is crime. Our institutional state law street arrest,” and jurisdiction probable cause to make an by role as is limited our judges by comity we to in order to fulfill respect briefly owe detain .and him/her function government. legitimate investigative [.]” “[a] coordinate branches 88 S.Ct. 1868. said, pres- That case being the instant ents a series of which dissent events Terry in approached officer prosecutorial aas “switche- characterizes briefly two after detained individuals disagree I that roo.” cannot with charac- from a observing suspicious their behavior terization, I “concern and share the for the concluding they were distance expressed by appearance of fairness” they to a store that about casing were thing It Judge McKee. one for the burglarize. The that the Terry Court held investigation assume ini- government to an Amendment allowed officer to Fourth officials, by tiated law enforcement state a briefly detain thеm order conduct to adopt prosecution even a commenced investigation their suspicious brief into be- prosecutors. quite state It is another also havior. Since individuals’ actions seek federal indictment where feder- armed, suggested they might be recognized only al interest the case is Court also concluded that the' Fourth given after the case prosecutors state have the officer conduct Amendment allowed “to their in the courts lost best shot state carefully outer limited search an of state Not issue law. does attempt ... clothing to discover such a offend notions of tactic fundamental might which be used assault weapons fairness, contrary it is to traditional no- Id. at [the officer].” S.Ct. tions of our federalism. explained: The Court The actions [the defendants] McKEE, Dissenting. with hypothesis consistent the officer’s dissent, I respectfully must I because contemplating these men were majority’s analysis is believe the inconsis which, it daylight robbery— is reason- Ohio, tent with assume, in- likely would be able (1968), and 20 L.Ed.2d 889 weapons— nothing the use of volve Illinois v. in their conduct from the time he first Al noticed them until the time confront- though differently a bit view case po- ed them and identified himself as court, than the con district nevertheless gave him sufficient lice reason clude Supreme precedent com hypothesis. negate that pels us affirm the district court’s order 28, Id. at 88 S.Ct. 1868. that was suppressing evidence seized - Moreover, although in this not case. do Therefore, Terry 'v. “under Ohio think here a the circumstances establish cases, may, subsequent ‘an officer consis Terry stop, agree begin I do that we must Amendment, tent with the Fourth conduct analysis our with the Supreme Court’s de brief, investigatory stop if the has officer in Terry. cision reasonable, suspicion ” activity criminal is afoot.’ United States Terry v. Ohio I. Valentine, (3d v. 232 F.3d Cir. omitted). 2000) (internal Supreme In Terry, the Court held that a citation The Su has that: approach preme explained officer individual Court suspicion is a Supreme Reаsonable less demand- Court held that the search ing probable standard than cause not did not violate the Fourth Amendment. only in suspi- the sense The Court reasoned that considerations of cion can with be established information safety justified allowing police to order in quantity that is different or content get drivers to out of their during vehicles required probable than that to establish stops lawful traffic because weapons could cause, in but also the sense that reason- be concealed inside easy the vehicle in suspicion able can arise from informa- reach of the driver. Since could tion that than less reliable that re- lawfully vehicle, order the driver out of the quired probable to show cause. that, the Court concluded under Terry, the “justified officer was in (internal omitted) conducting a limit- quotation Id. marks White, weapons ed search for once he had reason- v. (quoting Alabama 496 U.S. ably person concluded that the 110 S.Ct. whom he (1990)). Accordingly, lеgitimately stopped absent had might be armed cause, an individual’s detention presently must be dangerous.” Id. “reasonable, supported by articulable sus The Court extended the rule of Mimms picion that criminal activity is afoot.” Illi passengers to include of lawfully stopped nois v. Wilson, Maryland vehicles in (2000). 673, 145 L.Ed.2d 570 Howev 117 S.Ct. er, Bonner was “detained” after the vehicle There, Mimms, as in a traffic violation riding he was stopped for a traffic grounds created the to legally stop an infraction, and Supreme Court has al automobile. The pas- ordered the greater lowed latitude the context of senger out of the car precaution, as a stops. any suspicion because of illegality. Terry applied stops A. to traffic Wilson had difficulty no concluding the same considerations of safety implicated was first in the context present when drivers are get ordered to Pennsylvania lawful traffic stopped out of a outweighed vehicle Mimms, minimal any passengеr intrusion on who is (1977). There, police ordered out of a car that has legally been legally stopped a car for a traffic violation stopped for a traffic infraction. Id. at and ordered the get driver to out. The 117 S.Ct. 882. The Wilson Court found officer was not any particu- motivated that, matter, practical “as a passengers so; rather, larized in doing already are stopped by the virtue of the policy was the officer’s to order drivers out vehicle,” stop of the get the order to of their cars “as a matter of course when- out of the ear creates a minimal addi- they stopped ever had been for a traffic 413-14, tional intrusion. Id. at violation.” Id. at 98 S.Ct. 330. addition, fact “the that there is car, Once the driver was out of the than occupant more one of the vehicle bulge officer noticed a under the driver’s possible increases the sources of harm to jacket and immediately the officer con- Moreover, the officer.” “the motivation of “pat-down” ducted a search because he passenger employ a prevent believed violence to bulge weapon. the was a Id. at apprehension... every great 330. As a is bit as as result of that search, seized, gun a that of was and the defen- the driver.” Id. at dant was thereafter arrested. 882. testimony government produced not that the

B. Bonner was detained Terry suppression under did not hearing at the estab- Rather, Terry stop. testimony a the lish we majority’s analysis assumes that with, but fell of was consistent short estab- Terry stop, a and the are confronted with lishing, a incident valid search to a arrest. ultimately de analyzed court the district However, justified can not be on that re The seizure Terry. under after tention viewing- transcript suppression testimony the the failed es- basis because hearing, it is clear to me that the tablish cause an arrest other who were not “stopped” officers flight. than mere See States v. reasonable, basing any their actions on (3d Cir.2002).4 265-66 Myers, F.3d as is under suspicion required English why When Officer was asked They certainly Terry. never were able responded: “They chased Bonner he by any explain establishing their conduct area, exiting a crime known traffick- high suspicion despite having every oppor such (sic), ing the informed the officers tunity during suppression to do the so stop get into Defendant to back the that, very I hearing. telling think it at the vehicle, to comply and he failed with the hearing, the beginning suppression the However, App. at 148. if officer’s orders.” government court district asked Terry rejected testimony pursuant Bonner was to a the district court searched stop. inquired: The court “I understand that Bonner ordered into the car was back search; a a that this is is that warrantless testimony as well as the officer’s about a Terry App. v. Ohio at 127. The search?” “high crime area” or one known for “nar- did confirm a government’s response not trafficking.” cotics Id. 17.5 We reverse Rаther, stop. counsel stated: “This findings only the district court’s factual a was search incident arrest.” Id. erroneous, they clearly i.e. when are when are they “completely devoid of credible ‍​‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌‌​​‌​‌​​‌​‌‌‌‌‌‌​​​​‌‌​​‌‍surprising government It is not that the argue evidentiary Terry initially did not because or bear no rational rela- basis California, Despite inquiry its 4. initial into a search inci- sonable. Hill v. arrest, dent to the district did base its court Absent (“Bonner's ruling Terry. App. at 18-19 suppression more than was offered at the flight alone to create a reason- is insufficient hearing, inquiry the district court’s under- suspicion was in- able articulable that he objective mined reasonableness of activity.... volved in criminal Because this subjective question that the area belief was government court finds that the failed to meet "high crime” area or for "narcotics known showing sup- burden of Bonner’s trafficking.” ported by a reasonable articulable conduct, Moreover, requirement of criminal and seizure vio- think that rights.”). lated Bonner’s Fourth Amendment objectively an reasonable belief addresses Judge Smith's concern that such determina- concurring opinion, Judge In his Smith cor- by being judges are tions made comfort rectly notes the distinction between establish- their rather courtrooms than officers in ing "high that area is a crime area” versus Concurring Op. the streets. See at 218. Al- establishing good an officer’s faith belief though proper deference must be afforded to suggest it is one. the district do knowledge training, experience, court was correct to the extent that it re- officers, trying as well circum- government prove quired the the area them, facing stances the Constitution does not actually high by prepon- "a crime area” responsibilities allow us our to abdicate Rather, inquiry derance of evidence. judgments simply favor of their because we arresting subjective be the must belief of the However, operating Terty are within comfortable confines it is clear оfficer. under subjective objectively appellate be rea- belief must of courtroom or chambers. Here, tionship supporting majority to the data.”6 The states that English Officer findings of fact are the district court’s plastic bag observed a Bonner’s hand “[wjhile clearly supported the record. Maj. him.” subduing Op. at 217. However, English actually Officer stated conflicting testimony There was about that he bag did not see the until anything whether the officers said to Bon- after Bonner had been handcuffed. Officer En- ran, and ner before he the court discred- glish finally stated that after he was able conflicting testimony ited the officers’ Bonner, Thus, to subdue the officers they Judge did. Id. at 15. discovered Smith concurring opinion, clutching summarizes in that “he was a plastic bag- his may gie... officer, issue before us be distilled as whether ”. at App. 149. The other nonconsensual, “flight legitimate from a Stewart, Officer never was asked when he [by gives ... itself] rise to first baggie saw the that Bonner was suspicion.” Concurring See clutching. testimony relevant Op. Maj. Op. at 221. English’s testimony this record is that he subdued, bag noticed the after Bonner was chased, Bonner was tackled and hand- being not before or while he was subdued. simply cuffed because he ran. That Officer Stewart testified that he saw Offi- absolutely English’s consistent with Officer English cer something take out of Bon- testimony at suppression hearing. Of- “[ajfter ner’s hand he was handcuffs.” English ficer following was asked the App. at 136. question: Mr. “[T]he reason Bonner was being chased was because he started run- “It is the state’s burden to demonstrate ning, responded: correct?” The officer that the justify seizure seeks to on the “That’s initial the reason the chase was suspicion basis the reasonable was suffi- started, I App. believe.” at 153. Officer ciently scope limited in and duration to English described the as follows: satisfy the of an investigative conditions I eventually caught up with the Defen- Royer, seizure.” Florida v. dant, ground.... and we fell to the try get up Defendant continued to Wilson, Terry, recognized like Mimms and away from me. him grasp had in a briefly that officers who detain individuals waist; around the try continued to investigation upon based get up get away from me.... protect need to themselves and him place informed numerous times to safety concerns for the of the officer his quit hands behind his back and re- justify steps others certain limited sisting. consistent with that concern. The App. at 149. The officer was then asked explained: necessary

whether or not it forcibly was can not blind [W]e ourselves to the need place Bonner’s hands behind his back for law English protect enforcement officers to Officer confirmed that he was able prospective “to subdue themselves and other vic- together the Defendant” with Sweeney they Officer tims of in situations where and Officer Stewart. Id. violence Therefore, quite the district court lack cause for an arrest. cor- stating: justified rect in only pertinent believing “The factor When an officer is flight.” App. is Bonner’s suspiсious that an individual whose be- (3d Cir.2002). 6. United States v. 144 F.3d F.3d Taftsiou, (3d Cir.1998); Perez, see also United States v. turn, that the likelihood the officer investigating range at close reduces

havior he is to or will be victim of an assault.” Id. “The dangerous the officer the is armed police others, clearly risk of harm to both the and the appear to it would to be if the rou- deny occupants the is minimized officers unreasonable to the officer necessary tinely unquestioned command of power take reasonable exercise Summers, Michigan the situation.” per- to determine whether the measures 2587, carrying a weapon son in fact and to U.S. is (internal (1981) citation omit- physical the threat of harm. neutralize ted).7 at 88 S.Ct. 1868. Neverthe- less, cognizant remained of “the the Court However, my colleagues have severed of the quality nature and intrusion” analytical moorings. the rule from its It person detained. Id. concluded that the They the rule here even applying are authority on the Fourth Amend- conferred though not even police attempt did ment detention “nar- for brief must be of explain per- their actions terms rowly permit drawn... getting ceived threat from Bonner out of of weapons protection search for any danger the car arose chas- officer, police where has reason to ing, subduing occupant tackling, dealing that he is with an armed believe stopped merely trying who was vehicle individual, regardless dangerous course, I do not to leave. Of mean probable whether he has cause to arrest necessarily suggest flight that eliminates the individual for the crime.” Id. at danger the Court concerned with Thus, However, manner in which Terry, “[t]he 1868. or I Mimms Wilson. seizure and search conducted is law equate think a stretch to enforce- ... part inquiry as vital a as wheth- ment’s a driver or passen- need to control er they ger were warranted all.” Id. with the officers’ need control Bon- clearly English ner here. testified S.Ct. 1868. Officer that chased аnd Bonner was handcuffed above, As noted held Mimms Court away because from a stopped he ran car. that order driver of a law- offered, justification except by No other is fully stopped step automobile out of the my colleagues. Accordingly, believe this protection, stating car for the officer’s own only if seizure can stand it can be significant percentage “a of murders justified a search incident to a valid as officers occurs when the officers warrantless arrest. making stops.” are (1977) government no doubt this realized (internal therefore, quotation above, citation and marks explained as told the omitted). danger only suppression precisely that was reduced with court justification However, by allowing minimal additional intrusion for the search. ab Bonner, sent to arrest officers to “control” situation to the cause ordering occupants extent of out of the search can not be sustained a search “Establishing cаr. a face-to-face confron- incident to an arrest. United States v. (3d Cir.2002). Myers, tation 265-66 possibility, diminishes otherwise 308 F.3d substantial, driver,” Moreover, if passenger, even we view as a movements; this, “can stop, make unobserved would still conclude the district Moorefield, hands In United States v. 111 F.3d remain inside with in the air his/her (3d Cir.1997), safety upon we held based 12-13 could the same considerations of lawfully passenger stopped upon in a car to relied in Mimms and Wilson. order [], suppression court’s order was correct be- Terry Prior to v. Ohio restraint nothing cause is person there establish reason- on the amounting to a seizure for flight. purposes able but Bonner’s of the Fourth Amendment justified was invalid by probable unless addition, above, In as noted scope Terry cause. created a limited excep- and duration of the detention authorized tion to general rule: search and Terry under must be consistent with the justifiable seizures are under the Fourth suspicion underlying articulable the deten- Amendmеnt if there is articulable suspi- tion; that qua Terry. is the sine non of It cion that a person has or committed is eliminating require- is the basis for about to commit a crime. probable ment of cause before detaining (citations Id. at 103 S.Ct. 1319 omit- someone. As the Court stated Florida ted). 491, 500, Royer, v. 103 S.Ct. (1983), investigative L.Ed.2d “an Thus, Royer Court reinforced the

detention temporary must be no last fact did not create a license to longer than necessary to effectuate the investigation detain for in the absence of purpose stop. Similarly, the investi- suspicion. The Court also gative employed methods should be the stressed that may be “[detentions ‘investi least reasonably intrusive means available gative’ yet violative of Fourth Amend verify suspicions the officer’s in a short ment absent cause.” Id. at period of time.” Terry does not authorize 103 S.Ct. 1319. “In the name investi chase, police to tackle and handcuff one gating person who is no more than sus away who runs from solely them basеd on pected of criminal activity, police may Moreover, flight. I do not believe other carry not out a full search of per precedent support can that level of intru- son. ... Nor police seek to verify sion either. suspicions by their approach means that the conditions of arrest.” Id. (citing Dun Flight

II. Detention Based on Alone York, away 200, 207-09, New U.S. (1979)). 99 S.Ct. To determine if legitimately Bonner was solely flight, detained based on his we majority notes that Bonner was the must Supreme examine two Court cases occupant stopped of a vehicle who “ran regarding an right individual’s to walk from legitimate the scene of a traffic stop away officers; police Roy Florida v. ivithout authorization or consent of the er, 75 officers,” analysis and assume that under (1983), L.Ed.2d 229 and Illinois v. Ward Maj. Mimms and appropriate. Wilson is low, added). However, Op. (emphasis at 218 under Royer, is irrelevant that Bonner left the police vehicle without the officers’ Royer

A. Florida v. Royеr authorization. did not condition an In Royer, Supreme Court held that right go way individual’s on his/her obligation there is no inquiries fact, to submit to obtaining police permission. first approached by when police. The Court conditioning right police to leave a also held that refusal to police inquiry submit to on ‍​‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌‌​​‌​‌​​‌​‌‌‌‌‌‌​​​​‌‌​​‌‍the obtaining street on “authori- questioning cooperate police with a in totally negate zation or consent” would not, quiry more, does without Royer’s, holding. majority furnish the As the correct- necessary grounds notes, ly for detention. 460 cooperate a refusal to with the 497-98, 103 encounter, S.Ct. 1319. in a consensual without

more, they expected people to find a crowd of suspi can constitute reasonable area, Maj. including [drug] stop. Op. (quoting for a lookouts cion Bostick, caravan ap- customers.” Id. As the Florida (1991)). 2382, 115 him look at proached saw run, holding a as he bag them and fled. difficulty analyzing with this case context, police reasonably сould Given Royer not from Illinois v. stems but dealer, pur- a drug conclude he was Wardlow, 119, 673, 145 chaser, or Under those circum- lookout. language The Court’s stances, with allowing officers “confronted prior there some tension with its creates fugitive to and flight such investi- in holding Royer though even the Wardlow gate quite further is consistent with the to reaffirm the explicitly Court careful right go to business or individual’s about in holding Royer. the face stay put to remain silent in 125, at 120 police questioning.” Id. S.Ct. B. Illinois Wardlow [police] 673. “It was in this context that Wardlow, that police In the Court held investigate to Wardlow ob- decided after Terry stop an properly conducted at 120 serving him Id. S.Ct. flee.” looking individual fled after in the who added). pursuing (emphasis 673 When the police approaching direction an caravan police caught he immedi- heavy in “an area known for narcotics ately “pat-down search for conducted trafficking.” at 120 S.Ct. in weapons... experience, because his Royer 673. The summarized Court weapons to in was common for there be officer, an holding “that when without rea- vicinity the near of narcotics transactions.” cause, ap- sonable 121-22, Id. at 120 S.Ct. individual, an individual has a proaches ignore go his right about to. different, quite The context is here Id. at 120 S.Ct. 673. business.” quick ignore we not should be so to However, flight the Court also noted that in Supreme pronouncement Royer Court’s is one of the circumstances that must be by police who approached that one is so, In Terry. doing considered Id. under him; any question put “need not-answer however, “any reiterated that questions he decline to listen more, cooperate, refusal to does without may go way.” all Royer, on his 460 of objective not furnish the minimal level (citing Terry 1319 justification needed a detention or sei- Ohio, 20 S.Ct. Bostick, (quoting zure.” Florida v. Id. (1968)). course, Of L.Ed.2d away; did not walk he ran. The Court in (1991)). away is running Wardlow noted that more opinion A close in with than reading guilt going of the Court’s consistent with about any apparent Wardlow resolves tension. one’s business. 528 U.S. at justified (“[U]nprovoked flight simply It was not not a flight Wardlow’s is Rather, by in flight cooperate. Flight, detention. it was mere refusal to his nature, ‘going in one’s very context with the other circumstances about busi- fact, ness’; just opposite.”). case. in it is The circumstances included clearly fact that were an area That was true case “patrolling Wardlow’s found, heavy trafficking.” known for because the area where was narcotics fact, activity in his drug bag Id. at 120 S.Ct. 673. there and hand flight the ar- traveling a caravan “because combined with his create suspicion required Terry. ticulable under sultant loss of control inability or the Here, only flight, my there is col- police to announce the reason for the stop. leagues concede that “the Supreme Court briefly Bonner could have been detained unprovoked has never held that flight vehicle, inside of the and he could also enough justify Maj. alone is a stop.” pursuant have been detained to an order Op. at 220. step outside of the vehicle. In both situations, doubt that the in- Court Wardlow justified detention would be tended to stretch running by very its focus on real concerns about the officers’ the extent that in Royer safety. the rule would be That is not what happened. The swallowed, especially since the Court dis- majority’s focus point. misses the Absent Thus, claimed skep- such intent. I am permit circumstances that the kind of de- Supreme tical that the Court intended to tention authorized Mimms and its Royer announce a rule under progeny, and Wardlow this analyzed case must be under cause the Fourth would Amendment the more restrictive lens of Terry, Royer, upon to rest the speed with which one and precedent Wardlow. Under the of cases, chooses to leave an presence. officer’s flight those alone give does not rise such a guar- probable cause, Under rule the fundamental or suspicion. reasonable of antees the Fourth Amendment Similarly, police would can not rely upon some vary suspect’s gait. with a Until the Su- undefined and untethered notion of “con- rule, preme Court announces such a I prevent am trol” to someone from walking willing away conclude that someone in ah interrogation from in the absence away Bonner’s situation is free to walk of cause or lawfully vehicle, from a stopped but not where circumstances suggest do not quickly away free to walk too run. safety concerns so central to Terry, course, Mimms and progeny. their Of My colleagues repeatedly stress that above, explain I it is not the arresting prevented “Bonner Officer Stewart from officers here who attempt explain Bon- controlling stop by running from the “control”; ner’s arrest terms of it is the purpose vehicle before the stop of the was majority. quite simply officers state Maj. even announced.” Op. at 219.8 fail ran; that Bonner was arrested because he to seе importance pur- of whether the and so he was. pose of stop had been announced or majority’s not as the analysis surely Today would we therefore hold that “[fjlight nonconsensual, be the same if Officer Stewart had an- from a legitimate traffic (in purpose stop. nounced the of the More- which the officers are authorized over, an individual who exercises his or her to exert superintendence and control over car) right constitutional a police occupants leave officer of the gives rise to inevitably will prevent police Maj. officer suspicion.” Op. at 221. controlling stop” “from completing troubling This is a resolution of a close and an investigation. Given the officers’ testi- difficult case. Reasonable minds can easi- mony, our Fourth inquiry ly disagree Amendment about the application of Ward- must focus on flight, Royer Bonner’s not the re- low to the circumstances here. (“[A] Maj. 8. Op. See also at 218-19 could exercisе the initial control authorized cases.”); authority duty has the to control Wilson and other id. ("[Bonner’s] occupants”); flight prevented vehicle and its id at n. from (".. purpose discharging duty maintaining .Bonner fled before the of the their of over- announced, sight stop....”). before the and control over the traffic that was seized analysis, may suppressed final well be evidence In the will the tension him on Supreme Court resolve November However, those two cases. I see between appealed The Commonwealth thereafter day comes, simply can not until that to the suppression Supe- the court’s order of majority’s application agree with However, the Commonwealth rior Court. precedent. Supreme Court content until the state was not to wait appeal. court its appellate could resolve III. Procedural Posture March Bonner was indicted in On of Prosecution court for possessing federal controlled additional, troubling an There is App. substance with intent to distribute. requires case a brief of this aspect 4, 9. The Commonwealth thereafter of possession comment. Inasmuch as the appeal Superior withdrew before found Bonner’s the controlled substance Pennsylvania could rule on it. after his constituted possession arrest law, suppression ruling federal The state was based under both state and offense initially pros- interpretation option upon had the court’s prosecutors Pennsylvania ruling him in state in federal and the ecuting court or Constitution course, is, on this the district court based apparent court. For reasons not record, filed state the United Ac- prosecutors initially upon States Constitution.9 cordingly, he was in state doctrine is charges prosecuted Rooker-Feldman implicated of Penn- can best be court where Commonwealth what de- prosecutorial charged possession with scribed as a “switcheroo.”10 sylvania Bonner Nevertheless, crack cocaine concerned that with the intent distribute am still prosecutors apparently several and sum- state and federal as well as misdemeanors in the mary Defending himself chose to shift this case to federal court offenses. Pleas, moved to court’s appeal sup- of Common while the of the state from order I think it fair suppress physical pression pending. evidence seized argued significant cooperation him his arrest. that the to assume a level of upon He ini- lacked reasonable and communication between state fed- him. tially Following hearing prosecutors on eral who executed this hand- detain motion, of Com- off in order to an end run around suppression his the Court execute granted motion and adverse of mon Pleas Bonner’s decision of the Court Com- trime, 1337, (1980) Pennsylvania Supreme 9. The Court has held 31 HASTINGS L.J. 1350 I, Pennsylvania § 8 of the ("[I]f that Art. Constitu- trial courts could [federal state] greater protection affords than the tiоn readily judgments annul the of each other on Fourth Amendment of the United States Con- merits, finality prerequisite of despite language stitution almost identical destroyed.”); judicial system would be 18 provisions. two See constitutional AL„ JAMES WM. MOORE ET MOORE'S 374, 398, Edmunds, v. Pa. Commonwealth 526 ¶ (3d 133.30[3][a] FEDERAL PRACTICE (1991) (refusing adopt good 586 A.2d 887 ed.2003). exception requirement to the warrant faith Leon, in United v. set forth States Rooker-Feldman, Under lower federal (1984)). 677 104 82 L.Ed.2d courts cannot entertain a constitutional claim previously adjudicated in if it has been state Appeals District v. 10. See Columbia Court court, requested or if the in the relief claim Feldman, U.S. 460 103 S.Ct. determining requires either the state (1983); Fidelity v. Rooker voiding wrong decision is the state court's Co., 413, 415-16, U.S. Trust 263 ruling. Twp., Strabane court’s Gulla North 68 L.Ed. 362 See also Williamson Cir.1998). (3d Chang, Rediscovering the Rooker Doc- F.3d B.C. jurisdiction Although we have mon Pleas. it, procedural exercise

here and must the crimi

history does not reflect well on justice system ap and undermines

nal important fairness so its

pearance of functioning. perform high

proper “[T]o way[,] ‘justice best must

function in the ” In re justice.’ satisfy the appearance

Murchison, 133, 136, (1955) (quoting L.Ed. Offutt ‍​‌‌​​​‌‌‌‌​‌‌​​‌‌​​‌​‌‌‌​​‌​‌​​‌​‌‌‌‌‌‌​​​​‌‌​​‌‍States, (1954)). future, In the I would

99 L.Ed.

hope appearance that concern prosecutors

fairness will constrain

engaging unexplained in the kind of tacti manipulation appears

cal so evident

here.

Gary Marshall ALSTON PARKER; Singer

William Jack

(N.J.(Newark) D.C. No. 95-

cv-06158)

Gary Marshall Alston Simmon; Lynda Navratil

Carroll

(N.J.(Newark) 95-cv-06159) D.C. No.

Gary Alston, Appellant. Marshall

No. 03-2683. Appeals, Court of States

Third Circuit.

Argued Jan. 2004.

April

Case Details

Case Name: United States v. Jermane E. Bonner

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 30, 2004

Citation: 363 F.3d 213

Docket Number: 03-1547

Court Abbreviation: 3rd Cir.