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United States v. Johnson

United States Court of Appeals, Seventh Circuit

October 27, 2017

United States of America, Plaintiff-Appellee,
v.
Randy Johnson, Defendant-Appellant.

          Argued November 30, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CR-25 - Rudolph T. Randa, Judge.

          Before Wood, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

          Easterbrook, Circuit Judge.

         Police in Milwaukee saw a car stopped within 15 feet of a crosswalk, which is unlawful unless the car is "actually engaged in loading or unloading or in receiving or discharging passengers". Wis.Stat. §346.53. One police car drew up parallel to the stopped car, while another drew up behind. Shining lights through the car's windows (it was after 7 P.M. in January), police saw a passenger in the back seat try to hide a firearm. Randy Johnson, the passenger, was prosecuted for possessing a weapon that, as a felon, he was forbidden to have. 18 U.S.C. §922(g)(1). After the district court denied his motion to suppress the gun, see 2014 U.S. Dist. Lexis 135367 (E.D. Wis. Sept. 25, 2014), adopting 2014 U.S. Dist. Lexis 135374 (E.D. Wis. Aug. 7, 2014), Johnson entered a conditional guilty plea and was sentenced to 46 months' imprisonment. A panel of this court affirmed the conviction, 823 F.3d 408 (7th Cir. 2016), but that decision was vacated when the full court decided to hear the appeal en banc.

         Johnson concedes that the car was stopped 7 or 8 feet from a crosswalk. The district court held that this gave the police probable cause to issue a ticket, a process that entails a brief seizure of the car and its occupants. As Officer Conway approached he saw Johnson make movements that led him to infer that Johnson was hiding something such as alcohol, drugs, or a gun. Concerned for his safety, Conway ordered Johnson to get out of the car. See Pennsylvania v. Mimms, 434 U.S. 106 (1977) (officers making a traffic stop on probable cause may require a car's occupants to get out). Once the car's door was open, Conway saw a gun on the floor. This led to Johnson's arrest.

         Johnson says that the judge should have suppressed the gun, because the statutory exception for receiving or discharging cargo or passengers means that the police did not have adequate reason to issue a ticket or even to approach the car until they had observed long enough to know that the car was not within the scope of the exception. The district court rejected that contention, as do we.

         First, the district court found that, when the police approached, all four doors of the car were shut and no one was standing nearby, so that the exception was inapplicable. 2014 U.S. Dist. LEXIS 135374 at *6 ("there is simply no evidence that the SUV was engaged in loading or unloading, or in receiving or discharging passengers, as the doors to the vehicle were closed and there is no evidence that any individuals were in the immediate vicinity of the vehicle"). That finding is not clearly erroneous. Indeed, Johnson does not contest it.

         Second, although Johnson contends that Wisconsin's judiciary would treat a driver's stop to buy something from a nearby store as within the "loading or unloading or ... receiving or discharging passengers" exception, we need not address that issue of state law. Officers who had probable cause-recall that it has been stipulated that the car was within 15 feet of the crosswalk-were entitled to approach the car before resolving statutory exceptions. Police possessed of probable cause can hand out tickets (or make arrests) and leave to the judicial process the question whether a defense, exception, proviso, or other limitation applies. See, e.g., Baker v. McCollan, 443 U.S. 137, 145-46 (1979); Hurem v. Tavares, 793 F.3d 742, 745-46 (7th Cir. 2015); Askew v. Chicago, 440 F.3d 894, 896 (7th Cir. 2006). Parking-enforcement patrols approach stopped cars countless times every day. Depending on what they find, sometimes they write tickets and sometimes they don't. If the car is occupied, the difference may turn on what the driver says. The Fourth Amendment requires searches and seizures to be reasonable; it does not demand that police and other public officials resolve all possible exceptions before approaching a stopped car and asking the first question.

         When denying Johnson's motion to suppress, the district court relied on Whren v. United States, 517 U.S. 806 (1996), which holds that probable cause to believe that a car's driver is engaged in speeding or another motor-vehicle violation supports a stop and arrest-and that the possibility of an ulterior motive, such as a desire to investigate drugs, does not matter, because analysis under the Fourth Amendment is objective. Johnson, who believes that the police had an ulterior motive for approaching his car, contends that Whren does not apply to infractions by stopped cars, which he labels parking violations rather than moving violations.

         Yet Whren did not create a special rule for moving offenses. The two doctrines that underlie Whren's holding-(1) that probable cause justifies stops and arrests, even for fine-only offenses, and (2) that analysis of search-and-seizure issues disregards the officers' thoughts-are of general application. See, e.g., Los Angeles v. Mendez, 137 S.Ct. 1539, 1546-47 (2017) (collecting cases); Arkansas v. Sullivan, 532 U.S. 769, 771 (2001); Atwater v. Lago Vista, 532 U.S. 318 (2001).

         We assumed in United States v. Shields, 789 F.3d 733, 744-46 (7th Cir. 2015), that Whren applies to parked as well as moving vehicles, and to parking violations as well as moving violations. Every other circuit that has addressed the issue expressly has so held. See Flores v. Palacios, 381 F.3d 391, 402-03 (5th Cir. 2004); United States v. Copeland, 321 F.3d 582, 594 (6th Cir. 2003); United States v. Choudhry, 461 F.3d 1097, 1101 (9th Cir. 2006) (collecting cases). If there were to be a difference, it would be easier to deem "reasonable" (the constitutional standard) an officer's approach to a car already stopped than the halting of a car in motion. "[I]f police may pull over a vehicle if there is probable cause that a civil traffic violation has been committed, then [the police] surely did not violate the Fourth Amendment by walking up to [a suspect], who was sitting in a car that rested in a spot where it was violating one of [a city's] parking regulations." United States v. Thornton, 197 F.3d 241, 248 (7th Cir. 1999).

         United States v. Paniagua-Garcia, 813 F.3d 1013 (7th Cir. 2016), and United States v. Flores, 798 F.3d 645 (7th Cir. 2015), do not hold otherwise. Both of these decisions concern the circumstances under which moving vehicles may be stopped on reasonable suspicion. Cf. Terry v. Ohio, 392 U.S. 1 (1968). The stop of a moving vehicle is more intrusive than approaching a parked car. Because the police approached Johnson's car with probable cause to believe that the driver was violating a traffic law, and the car was not moving, it is unnecessary to consider today how Terry applies when cars are in motion. It is enough to conclude that Whren applies to both parking and moving offenses.

         We grant that the police did more than just stroll up: two squad cars, which bathed the parked car in bright light, implied that the occupants were not free to drive away. The district judge treated this as a seizure; so do we. But issuing a ticket always entails a brief seizure. Johnson concedes that the driver of a car approached with probable cause to investigate a parking offense is not entitled to leave. What is more, when the officers approached this parked car, no one was in the driver's seat. (The driver was inside a liquor store making a purchase.) So both as a matter of the suspects' legal entitlements and as a matter of brute fact, it did not make any difference whether the police approached with two cars rather than one, or whether the cars' spotlights were on. Johnson's car was not going anywhere.

         The district court concluded that the way in which the stop was conducted was not responsible for the gun's discovery. 2014 U.S. Dist. Lexis 135374 at *13-16. That finding is not clearly erroneous. We therefore do not consider whether the officers' show of force was excessive under the circumstances. The United States contends that the use of two cars and searchlights was reasonable to reduce the risk the officers faced in making a nighttime stop in a high-crime area, circumstances in which a city will not rely on foot patrols to enforce traffic laws. Cf. Arizona v. Johnson, 555 U.S. 323 (2009) (discussing steps that officers may take for self-protection during auto stops). The district court did not address that subject; we do not either.

         Finally, it is worth noting that Johnson has never contended that the police considered the race of the car's occupants when deciding to approach it, or when deciding to use two cruisers rather than one. Indeed, Johnson has not contended that the police even observed the race of the car's occupants until after they approached it; recall that Johnson's principal contention is that police had the car in view for only an instant before deciding to approach. We therefore do not consider whether, and if so when, using racial criteria to select among potential targets of investigation would require the suppression of evidence.

         Affirmed

          Hamilton, Circuit Judge, joined by Rovner and Williams, Circuit Judges, dissenting.

         Five officers in two police cars seized the passengers of a stopped car. The officers swooped in on the car, suddenly parking close beside and behind it with bright lights shining in from both directions, opening the doors, pulling all the passengers out and handcuffing them. The district court found, and the majority and I agree, that the passengers were seized as the officers swarmed them, before the officers had any sign that one passenger had a firearm. The sole basis for this intrusive and even terrifying "investigatory stop"? A suspected parking violation ... for parking too close to an unmarked crosswalk.

         The majority errs by extending Terry v. Ohio,392 U.S. 1 (1968), and Whren v. United States,517 U.S. 806 (1996), to allow this pretextual seizure based on the suspected parking violation. This extension is not supported by existing law. It also runs contrary to the core Fourth Amendment standard of reasonableness. No other appellate court has tolerated such police tactics to address a suspected parking violation. Nor should we, at least absent extraordinary circumstances ...


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