THIRD CIRCUIT COURT OF APPEALS UPHOLDS TERRY SEARCH

In United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?