United States of America v. JERMANE E. BONNER On Appeal from the United States District Court for the Western…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-1547
UNITED STATES OF AMERICA,
Appellant
v.
JERMANE E. BONNER
On Appeal from the United States
District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 02-cr-00046)
District Judge: Hon. Gary L. Lancaster
Argued September 16, 2003
BEFORE: MC KEE, SMITH and
COWEN, Circuit Judges
(Filed: March 30, 2004)
Mary Beth Buchanan, Esq.
Bonnie R. Schlueter, Esq. (Argued)
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
Counsel for Appellant
W. Penn Hackney, Esq.
Karen S. Gerlach, Esq.
Lisa B. Freeland, Esq. (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellee
OPINION
COWEN, Circuit Judge.
Jermane Bonner fled from police
after the car in which he was a passenger
was stopped for a routine traffic violation.
The police gave chase and, upon
apprehending him, discovered that he was
carrying crack cocaine. The government
prosecuted Bonner for possession with the
intent to distribute 50 grams or more of
crack cocaine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A)(iii). The District
Court suppressed all evidence seized
during the stop including the drugs. This
appeal by the government followed.
In suppressing the evidence, the
District Court held that the officers lacked
a reasonable, articulable suspicion that
Bonner was involved in criminal activity.
The District Court reasoned that the sole
basis for the stop was Bonner’s flight from
police, and that under Illinois v. Wardlow,
528 U.S. 119, 120 S. Ct. 673, 145 L. Ed.
570 (2000), and its progeny, mere flight
when police appear on the scene is not
sufficient to estab lish reasonable
suspicion.

-- 1 of 19 --

2
We will reverse. Under the facts of
this case we hold that the officers had
reasonable suspicion to stop Bonner.
Although flight alone is not enough to
justify a police stop, this is not a case of
flight upon noticing police. The officers in
this case were effectuating a legitimate
traffic stop. During a traffic stop, police
officers may exercise reasonable
superintendence over the vehicle, its
driver, and passengers. Because Bonner
prevented the police from maintaining
oversight and control over the traffic stop
by fleeing, we hold that the police had
reasonable suspicion to stop him.
I
On March 8, 2001, Officers
Harbaugh, English, Stewart, and Sweeney
were in uniform and on duty at the police
security booth at the entrance to the
Ohioview Acres housing project in Stowe
T o w n s h i p , P e n n s y l v a n i a . A t
approximately 11:40 p.m., Officer
Harbaugh noticed a sports utility vehicle
leaving the housing project that had one
headlight out and an expired inspection
sticker. He signaled for the vehicle to
stop. The driver, Nathan Stewart,
complied. In addition to the driver, there
were two passengers: the driver’s brother,
Neil Stewart, in the back seat and Jermane
Bonner in the front passenger seat.
As Officer Harbaugh approached
the driver’s side of the vehicle, Bonner
alighted and ran. Officer Stewart chased
after him on foot, repeatedly yelling for
him to stop. Officer English gave chase in
the patrol car, driving in the direction
Bonner was running, then parked and
continued the chase on foot.
Officer English eventually caught
Bonner by tackling him. Both officers
then subdued and handcuffed Bonner.
While subduing him, Officer English
observed a clear plastic bag in Bonner’s
hand. The bag contained seven golf ball
sized rocks, which were later tested and
found to be crack cocaine. The officers
also seized $534.25 from Bonner during
the arrest.
The driver and other passenger
were told to put the vehicle in park, turn
off the ignition, and step out of the vehicle.
Both were handcuffed and detained for a
brief period of time, then released with a
citation for the traffic violations.
We have jurisdiction under 18
U.S.C. § 3731, and conduct plenary review
of the District Court’s determination that
the officers did not have reasonable
suspicion to stop Bonner. Ornelas v.
United States, 517 U.S. 690, 116 S. Ct.
1657, 134 L. Ed. 2d 911 (1996); United
States v. Valentine, 232 F.3d 350 (3d Cir.
2000). We review the District Court’s
findings of fact for clear error. Ornelas,
517 U.S. at 698, 116 S. Ct. at 1663.
II
As a preliminary matter, the
government challenges the District Court’s
findings that the area was not a high crime
area, and that the hour of the stop, 11:40

-- 2 of 19 --

3
pm, was not significant to the reasonable
suspicion inquiry. In support of its
contention that the Ohioview Acres
housing project was a high crime area, the
government submitted a log book of
arrests made at the housing project over a
three-year period. As the District Court
found, the log book reflected that there
was an average of 1.3 arrests per week,
and that most of the arrests were for
misdemeanors and summary offenses.
Considering the number of people who
live in the housing project, the District
Court found that this average reflected
neither a high crime area nor trafficking in
narcotics. The government contends this
finding was clearly erroneous, and points
to a news article as further evidence of the
level of crime present in the area. Even
considering the news article, however, the
evidence does not compel the conclusion
that the District Court erred in finding that
the housing project was not a high crime
area. The District Court found that the
stop did occur at 11:40 p.m., but did not
consider that factor relevant to its analysis
of whether there was reasonable suspicion
for the stop. The evidence does not
compel a different conclusion. We
conclude that the fact finding by the
District Court was not clearly erroneous.
III
It is uncontested that the initial
traffic stop was lawful under the Fourth
Amendment. A police officer who
observes a violation of state traffic laws
may lawfully stop the car committing the
violation. Pennsylvania v. Mimms, 434
U.S. 106, 109, 98 S. Ct. 330, 332, 54 L.
Ed. 2d 331 (1977). It is also well settled
that a police officer executing such a stop
may exercise reasonable superintendence
over the car and its passengers. Under
Mimms, the officer may order the driver
out of the vehicle without any
particularized suspicion. Mimms, 434
U.S. at 110-11, 98 S. Ct. at 333. The
Supreme Court extended that bright line
rule to allow the officer to order any
passengers out of the car as well.
Maryland v. Wilson, 519 U.S. 408, 117 S.
Ct. 882, 137 L. Ed. 2d 41 (1997).
Alternatively, the officer may order all of
the occupants to remain in the car with
their hands up. United States v.
Moorefield, 111 F.3d 10 (3d Cir. 1997).
In addition, the officer may pat down the
occupants of the vehicle and conduct a
search of the passenger compartment, if he
has a reasonable suspicion that the
occupants might be armed and dangerous.
Michigan v. Long, 463 U.S. 1032, 1049-
50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d
1201 (1983) (permitting search of vehicle
during traffic stop); Mimms, 434 U.S. at
111-112, 98 S. Ct. at 334 (permitting pat
down of driver upon reasonable
suspicion); Terry v. Ohio, 392 U.S. 1, 17,
88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889
(1968); Moorefield, 111 F.3d at 13-14
(permitting pat down of passenger upon
reasonable suspicion).
The government asserts that the
police officers ordered Bonner and the
other occupants to stay in the vehicle. At
the suppression hearing, however, there
was conflicting testimony whether the

-- 3 of 19 --

4
officers said anything before Bonner ran.
The District Court made no finding with
respect to what, if anything, the officers
said before Bonner got out of the vehicle
and ran. We will assume for the purpose
of this opinion that the officers did not
issue any commands before Bonner began
running. But even absent a specific
command, it is undisputed that Bonner, an
occupant of the stopped vehicle, ran from
the scene of a legitimate traffic stop
without authorization or consent of the
officers. During such a stop, a police
officer has the authority and duty to
control the vehicle and its occupants, at
least for a brief period of time.1 Bonner
prevented Officer Stewart from controlling
the stop by running from the vehicle
before the purpose of the stop was even
announced.
Under Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and
its progeny, an officer may conduct a brief,
investigatory stop when that officer has “a
reasonable, articulable suspicion that
criminal activity is afoot.” Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct.
673, 675, 145 L. Ed. 2d 570 (2000).
Although reasonable suspicion is less
demanding than probable cause, the Fourth
Amendment does require that an officer
making a stop have some level of objective
justification for that stop. United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,
1585, 104 L. Ed. 2d 1 (1989). In
evaluating whether a particular stop was
justified, courts must look at the totality of
the circumstances surrounding the stop.
Sokolow, 490 U.S. at 8, 109 S. Ct. at 1586
(quoting United States v. Cortez, 449 U.S.
411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d
621(1981)). In effectuating a valid stop,
police officers are allowed to use a
reasonable amount of force. Graham v.
Connor, 490 U.S. 386, 109 S. Ct. 1865,
104 L. Ed. 2d 443 (1989). Bonner argues
that flight, standing alone, is not sufficient
to engender reasonable suspicion on the
part of a police officer. Indeed, the
Supreme Court has never held that
unprovoked flight alone is enough to
justify a stop. The Supreme Court has
held, however, that flight upon noticing
police, plus some other indicia of
wrongdoing, can constitute reasonable
suspicion. Wardlow, 528 U.S. at 125-26,
120 S. Ct. at 676-77. The “plus” factor
was Wardlow’s mere presence in an area
known for high narcotics trafficking.
Wardlow, 528 U.S. at 124, 120 S. Ct. at
676. In holding that flight plus presence in
a high crime area justified the stop, the
1The Supreme Court has never
addressed the question of whether, during
a lawful traffic stop, the police could
detain any passengers for the entire
duration of the stop. Indeed, the Court
explicitly left that question open when it
held that the police could order passengers
out of the car during a stop. Maryland v.
Wilson, 519 U.S. 408, 415 n. 3, 117 S. Ct.
882, 886 n. 3, 137 L. Ed. 2d 41 (1997).
That question is not before us, as Bonner
fled before the purpose of the stop was
announced, and before the police could
exercise the initial control authorized by
Wilson and other cases.

-- 4 of 19 --

5
Court explained, “the determination of
reasonable suspicion must be based on
commonsense judgments and inferences
about human behavior.” Wardlow, 528
U.S. at 125, 120 S. Ct. at 676.
In Wardlow, eight officers in a
four-car caravan converged on a
neighborhood known for high narcotics
trafficking. Upon arriving in the area, two
of the officers noticed the defendant
standing near a building, holding a bag.
The defendant looked in the direction of
the officers and then fled. Wardlow, 528
U.S. at 122, 120 S. Ct. at 675. Before he
ran, the officers had no reason to suspect
the defendant of any wrongdoing, and had
no legitimate cause to detain him; the
defendant simply fled from the possibility
of a consensual encounter with the police.
Mere presence in an area known for
high crime does not give rise to reasonable
suspicion for a stop. Brown v. Texas, 443
U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L.
Ed. 2d 357 (1979). Police officers may
approach individuals without reasonable
suspicion or probable cause, and may
question such individuals without
implicating the Fourth Amendment.
Florida v. Royer, 460 U.S. 491, 497, 103
S. Ct. 1319, 1324, 75 L. Ed. 2d 229
(1983). An individual approached in this
manner “need not answer any question put
to him; indeed, he may decline to listen to
the questions at all and may go on his
way.” Royer, 460 U.S. at 498, 103 S. Ct.
at 1324 (citing Terry v. Ohio, 392 U.S. 1,
32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed.
2d 889 (1968) (Harlan, J. concurring);
Terry, 392 U.S. at 34, 88 S. Ct. at 1886
(White, J. concurring)). Moreover, a
refusal to cooperate with the police in a
consensual encounter, without more,
cannot constitute reasonable suspicion for
a stop. Florida v. Bostick, 501 U.S. 429,
437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d
389 (1991) (citations omitted).
In this case, however, Bonner did
not simply flee upon “noticing” police, nor
did he simply refuse to cooperate during a
consensual encounter. Bonner fled from a
lawful traffic stop, before the officers had
the chance to announce the purpose of the
stop. He continued fleeing despite
repeated orders to stop, and he did not stop
running until he was tackled by Officer
English. Bonner’s flight from a lawful
police traffic stop, where that flight
prevented the police from discharging their
duty of maintaining oversight and control
over the traffic stop, provided the officers
with reasonable suspicion to stop Bonner
for further investigation. Flight from a
non-consensual, legitimate traffic stop (in
which the officers are authorized to exert
superintendence and control over the
occupants of the car) gives rise to
reasonable suspicion.
IV
By reason of Bonner’s flight in the
course of a legitimate traffic stop, the
officers had reasonable suspicion to stop
him. Upon effectuating the stop the drugs
were revealed, giving probable cause to
arrest. The judgment of the District Court
entered on February 12, 2003, will be

-- 5 of 19 --

6
reversed. The case will be remanded to
the District Court for further proceedings
consistent with this opinion.
United States v. Bonner, No. 03-1547
Smith, Concurring.
Because I agree that “flight from a
non-consensual, legitimate traffic stop (in
which the officers are authorized to exert
superintendence and control over the
occupants of the car) gives rise to
reasonable suspicion,” I join Judge
Cowen’s opinion in full. Maj. op. at 5. I
write separately only to highlight an issue
implicated in the District Court’s fact-
finding which we have not been required
to address: whether under the flight “plus”
analysis of Wardlow, 528 U.S. 119, the
government is required to prove the
existence of objective criteria for what
constitutes a high crime area and that the
stop occurred in such an area, or rather that
the government is required to prove that
officers effecting the stop had a reasonable
articulable basis to believe that they were
in a “high crime area.”2 I point this out
because I believe these alternatives require
t h e D i s t r i c t C o u r t t o c o n d u c t
fundamentally different inquiries, even
though the evidence offered for both may
be overlapping or even identical.
Here, the District Court found that
“the government has not shown by a
preponderance of the evidence that Ohio
View Acres is such an area.” After
reviewing the relevant evidence, the
District Court declared that evidence
“hardly makes Ohio View Acres a heavy
crime and narcotics trafficking area.”
What I am concerned about in these
Wardlow-type cases is the fact-finder’s
focus: should it be that of a federal judge,
operating within the confines of a
courtroom, who believes the area to be one
of high crime, or that of a police officer
who, based on experience and an
awareness of crime and arrest data, had a
2Judge Cowen describes this factor as
whether the area was a “high crime area.”
Maj. op. at 2. The District Court’s
analysis, however, was more limited and
addressed only whether this was a “high
narcotics trafficking area.” As there are
many crimes which do not involve
narcotics trafficking, an area could be one
in which there is a high volume of crime,
but does not qualify as a “high narcotics
trafficking area.” Because the test should
be the same for either analysis, however,
the distinction is not material for purposes
of this concurrence. For purposes of
continuity, then, I adopt Judge Cowen’s
articulation of the question–whether the
area was a “high crime area.”

-- 6 of 19 --

7
basis to form a reasonable articulable
belief that it is such an area?3 Obviously,
the differences in focus are not only
differences of experience and perspective.
A judge engaged in adjudicative fact-
finding will apply standards of credibility
and proof that differ from the cognitive
processes of an officer acting in the field.
The touchstone of Terry v. Ohio is
its requirement that a court consider
whether “the facts available to the officer
at the moment of the seizure or the search
‘warrant a man of reasonable caution in
the belief’ that the action taken was
appropriate[.]” 392 U.S. at 21-22 (1968)
(citing Carroll v. United States, 267 U.S.
132 (1925); Beck v. Ohio, 379 U.S. 89, 96-
97 (1964)). As explained by the Supreme
Court in United States v. Cortez, 449 U.S.
411, 418 (1981), an officer’s suspicion that
criminal activity is afoot may be informed
by “various objective observations,
information from police reports, if such are
available, and consideration of the modes
or patterns of operation of certain kinds of
lawbreakers. From these data, a trained
officer draws inferences and makes
deductions–inferences and deductions that
might well elude an untrained person.”
See also United States v. Arvizu, 534 U.S.
266, 274 (2002) (officers may “draw on
their own experience and specialized
training to make inferences from and
dedu ctions abou t the cu mu lative
information available to them that might
well elude an untrained person.”) (internal
quotation marks omitted); Ornelas v.
United States, 517 U.S. 690, 699 (1996)
(reviewing court must give the appropriate
weight to factual inferences drawn by local
law enforcement officers). In the same
way, an officer is in the position to know
the routines and patterns of a geographic
area, and whether it is more prone to
crime. This knowledge may not be
reflected on arrest records and log sheets,
as arrests are not the only indicia of crime.
In any case, we need not resolve the issue
here.
I agree that the evidence offered by
the government does not compel the
conclusion that the District Court erred in
finding that Ohio View Acres was not a
high crime area. And even if the District
Court were required to determine whether
the officers had a reasonable articulable
basis to believe it was a high crime area,
such a finding would contribute nothing to
the result here because the government has
demonstrated flight “plus” by other
evidentiary means.
Finally, although I join Judge
Cowen in reversing the District Court, I
echo the sentiments of Judge McKee
expressed in Part III of his dissent.
It should be a rare occasion when
judges criticize, and thereby intrude into, a
legitimate exercise of prosecutorial
discretion. Nor should we routinely
3Wardlow did not resolve this issue
because it appears that in that case there
was no dispute that the stop took place in
a high crime area. In the case before us,
the District Court did confront a factual
dispute on this issue.

-- 7 of 19 --

8
question in our opinions the policy
decisions of Congress to federalize what
has traditionally been state law street
crime. Our institutional role as judges is
limited by our jurisdiction and by the
comity and respect we owe to coordinate
branches of government.
That being said, the instant case
presents a series of events which the
dissent characterizes as a prosecutorial
“switcheroo.” I cannot disagree with that
characterization, and I share the “concern
for the appearance of fairness” expressed
by Judge McKee. It is one thing for the
government to assume an investigation
initiated by state law enforcement
officials, or even to adopt a prosecution
commenced by state prosecutors. It is
quite another to seek a federal indictment
where the federal interest in the case is
recognized only after state prosecutors
have given the case their best shot in the
state courts and lost on an issue of state
law. Not only does such a tactic offend
fundamental notions of fairness, it is
contrary to traditional notions of our
federalism.
U.S. v. Bonner, No. 03-1547
McKee, Dissenting
I must respectfully dissent, because
I believe the majority’s analysis is
inconsistent with Terry v. Ohio, 392 U.S.
1 (1968), and Illinois v. Wardlow, 528
U.S. 119 (2000). Although I view this
case a bit differently than the district court,
I nevertheless conclude that Supreme
Court precedent compels us to affirm the
district court’s order suppressing the
evidence that was seized in this case.
Moreover, although I do not think the
circumstances here establish a Terry stop,
I do agree that we must begin our analysis
with the Supreme Court’s decision in
Terry.
I. Terry v. Ohio
In Terry, the Supreme Court held
that a police officer may approach an
individual “for purposes of investigating
possibly criminal behavior even though
there is no probable cause to make an
arrest,” and briefly detain him/her in order
to fulfill “[a] legitimate investigative
function [.]” 392 U.S. at 22.
The police officer in Terry
approached and briefly detained two
individuals after observing their suspicious
behavior from a distance and concluding
that they were casing a store that they were
about to burglarize. The Terry Court held
that the Fourth Amendment allowed the
officer to briefly detain them in order to
conduct a brief investigation into their
suspicious behavior. Since the
individuals’ actions also suggested that
they might be armed, the Court also
concluded that the Fourth Amendment
allowed the officer “to conduct a carefully
limited search of the outer clothing . . . in
an attempt to discover weapons which
might be used to assault [the officer].” Id.
at 30. The Court explained:
The actions of [th e
defendants] were consistent
with the officer’s hypothesis

-- 8 of 19 --

9
that these men were
c o n t e m p l a t in g a
daylight robbery - -
w h i c h , i t i s
r e a s o n a b l e t o
assume, would be
likely to involve the
use of weapons - -
and nothing in their
conduct from the
time he first noticed
them until the time
he confronted them
a n d i d e n t i f i e d
himself as a police
officer gave him
sufficient reason to
n e g a t e t h a t
hypothesis.
Id. at 28.
Therefore, “under Terry v. Ohio and
subsequent cases, ‘an officer may,
consistent with the Fourth Amendment,
conduct a brief, investigatory stop if the
officer has a reasonable, articulable
suspicion that criminal activity is afoot.’”
United States v. Valentine, 232 F.3d 350,
353 (3d Cir. 2000) (internal citation
omitted). The Supreme Court has
explained that:
Reasonable suspicion is a
less demanding standard
than probable cause not only
in the sense that reasonable
suspicion can be established
with information that is
different in quantity or
content than that required to
establish probable cause, but
also in the sense that
reasonable suspicion can
arise from information that
is less reliable than that
required to show probable
cause.
Id. (internal quotation marks omitted)
(quoting Alabama v. White, 496 U.S. 325,
330 (1990)). Accordingly, absent probable
cause, an individual’s detention must be
supported by “reasonable, articulable
suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123
(2000). However, Bonner was “detained”
after the vehicle he was riding in was
stopped for a traffic infraction, and the
Supreme Court has allowed greater
latitude in the context of traffic stops.
A. Terry applied to traffic stops
Terry was first implicated in the
context of a lawful traffic stop in
Pennsylvania v. Mimms, 434 U.S. 106
(1977). There, a police officer legally
stopped a car for a traffic violation and
ordered the driver to get out. The officer
was not motivated by any particularized
suspicion in doing so; rather, it was the
officer’s policy to order drivers out of their
cars “as a matter of course whenever they
had been stopped for a traffic violation.”
Id. at 109-10. Once the driver was out of
the car, the officer noticed a bulge under
the driver’s jacket and the officer
immediately conducted a “pat-down”
search because he believed the bulge was

-- 9 of 19 --

10
a weapon. Id. at 111-12. As a result of that
search, a gun was seized, and the
defendant was thereafter arrested.
The Supreme Court held that the
search did not violate the Fourth
Amendment. The Court reasoned that
considerations of safety justified allowing
police to order drivers to get out of their
vehicles during lawful traffic stops
because weapons could be concealed
inside the vehicle in easy reach of the
driver. Since police could lawfully order
the driver out of the vehicle, the Court
concluded that, under Terry, the officer
was “justified in conducting a limited
search for weapons once he had reasonably
concluded that the person whom he had
legitimately stopped might be armed and
presently dangerous.” Id.
The Court extended the rule of
Mimms to include passengers of lawfully
stopped vehicles in Maryland v. Wilson,
519 U.S. 408 (1997). There, as in Mimms,
a traffic violation created the grounds to
legally stop an automobile. The police
ordered the passenger out of the car as a
precaution, not because of any suspicion of
illegality. The Wilson Court had no
difficulty concluding that the same
considerations of safety present when
drivers are ordered to get out of a stopped
vehicle outweighed the minimal intrusion
on any passenger who is ordered out of a
car that has been legally stopped for a
traffic infraction. Id. at 414. The Wilson
Court found that, “as a practical matter, the
passengers are already stopped by the
virtue of the stop of the vehicle,” and the
order to get out of the car creates only a
minimal additional intrusion. Id. at 413-14.
In addition, “the fact that there is more
than one occupant of the vehicle increases
the possible sources of harm to the
officer.” Moreover, “the motivation of a
passenger to employ violence to prevent
apprehension. . . is every bit as great as
that of the driver.” Id. at 414.
B. Bonner was not detained under
Terry
The majority’s analysis assumes
that we are confronted with a Terry stop,
and the district court ultimately analyzed
the detention under Terry. However, after
reviewing the transcript of the suppression
hearing, it is clear to me that the police
officers who “stopped” Bonner were not
basing their actions on any reasonable,
articulable suspicion as is required under
Terry. They certainly never were able to
explain their conduct by establishing any
such suspicion despite having every
opportunity to do so during the
suppression hearing. I think it telling that,
at the very beginning of the suppression
hearing, the district court asked the
government if Bonner was searched
pursuant to a Terry stop. The court
inquired: “I understand that this is a
warrantless search; is that a Terry v. Ohio
search?” App. at 127. The government’s
response did not confirm a Terry stop.
Rather, counsel stated: “This was a search
incident to arrest.” Id.
It is not surprising that the
government did not argue Terry initially
because the testimony that the government
produced at the suppression hearing did

-- 10 of 19 --

11
not establish a Terry stop. Rather, the
testimony was consistent with, but fell
short of establishing, a search incident to a
valid arrest. The seizure can not be
justified on that basis because the
testimony failed to establish probable
cause for an arrest other than mere flight.
See United States v. Myers, 308 F.3d 251,
265-66 (3d Cir. 2002).4
When Officer English was asked
why he chased Bonner he responded:
“They were exiting a high crime area,
known trafficking (sic), and the officers
informed the Defendant to stop and get
back into the vehicle, and he failed to
comply with the officer’s orders.” App. at
148. However, the district court rejected
the testimony that Bonner was ordered
back into the car as well as the officer’s
testimony about a “high crime area” or one
known for “narcotics trafficking.” Id. at
17.5 We reverse the district court’s factual
findings only when they are clearly
erroneous, i.e. when they are “completely
devoid of a credible evidentiary basis or
4 Despite its initial inquiry into a search
incident to arrest, the district court did
base its ruling on Terry. App. at 18-19
(“Bonner’s flight alone is insufficient to
create a reasonable articulable suspicion
that he was involved in criminal activity. .
. . Because this court finds that the
government failed to meet its burden of
showing Bonner’s stop was supported by
a reasonable articulable suspicion of
criminal conduct, the stop and seizure
violated Bonner’s Fourth Amendment
rights.”).
5 In his concurring opinion, Judge
Smith correctly notes the distinction
between establishing that an area is a “high
crime area” versus establishing an officer’s
good faith belief that it is one. I do not
suggest that the district court was correct
to the extent that it required the
government to prove that the area is
actually “a high crime area” by a
preponderance of the evidence. Rather,
the inquiry must be the subjective belief of
the arresting officer. However, it is clear
under Terry that the subjective belief must
be objectively reasonable. Hill v.
California, 401 U.S. 797 (1971). Absent
more than was offered at the suppression
hearing, the district court’s inquiry
undermined the objective reasonableness
of any subjective belief that the area in
question was a “high crime” area or known
for “narcotics trafficking.”
Moreover, I think that the
requirement of an objectively reasonable
belief addresses Judge Smith’s concern
that such determinations are being made
by judges in the comfort of their
courtrooms rather than by officers in the
streets. See Concurring Op. at 2. Although
proper deference must be afforded to the
training, experience, and knowledge of
police officers, as well as the trying
c i r c u ms t a n c e s f a c i n g t h em, th e
Constitution does not allow us to abdicate
our responsibilities in favor of their
judgments simply because we are
operating within the comfortable confines
of a courtroom or appellate chambers.

-- 11 of 19 --

12
bear no rational relationship to the
supporting data.”6 Here, the district
court’s findings of fact are clearly
supported by the record.
There was conflicting testimony
about whether the officers said anything to
Bonner before he ran, and the court
discredited the officers’ conflicting
testimony that they did. Id. at 15. Thus, as
Judge Smith summarizes in his concurring
opinion, the issue before us may be
distilled as whether “flight from a non-
consensual, legitimate traffic stop . . . [by
itself] gives rise to reasonable suspicion.”
See Concurring Op. at 1, and Maj. Op. at
9.
Bonner was chased, tackled and
handcuffed simply because he ran. That is
abso lutely cons istent w ith Officer
English’s testimony at the suppression
hearing. Officer English was asked the
following question: “[T]he reason M r.
Bonner was being chased was because he
started running, correct?” The officer
responded: “That’s the reason the initial
chase was started, I believe.” App. at 153.
Officer English described the stop as
follows:
I eventually caught up with
the Defendant, and we fell
to the ground. . . . The
Defendant continued to try
to get up away from me. I
had him in a grasp around
the waist; he continued to
try to get up and get away
from me. . . . I informed
him numerous times to place
his hands behind his back
and quit resisting.
App. at 149. The officer was then asked
whether or not it was necessary to forcibly
place Bonner’s hands behind his back and
Officer English confirmed that he was able
“to subdue the Defendant” together with
Officer Sweeney and Officer Stewart. Id.
Therefore, the district court was quite
correct in stating: “The only pertinent
factor is Bonner’s flight.” App. at 18.
The majority states that Officer
English observed a plastic bag in Bonner’s
hand “[w]hile subduing him.” Maj. Op. at
4. However, Officer English actually
stated that he did not see the bag until after
Bonner had been handcuffed. Officer
English stated that after he was finally able
to subdue Bonner, the officers discovered
that “he was clutching a plastic baggie. .
.”. App. at 149. The other officer, Officer
Stewart, was never asked when he first
saw the baggie that Bonner was clutching.
The only relevant testimony on this record
is English’s testimony that he noticed the
bag after Bonner was subdued, not before
or while he was being subdued. Officer
Stewart testified that he saw Officer
English take something out of Bonner’s
hand “[a]fter he was in handcuffs.” App.
at 136.
“It is the state’s burden to
demonstrate that the seizure it seeks to
6 United States v. Taftsiou, 144 F.3d
287, 293 (3d Cir. 1998); see also United
States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002).

-- 12 of 19 --

13
justify on the basis of the reasonable
suspicion was sufficiently limited in scope
and duration to satisfy the conditions of an
investigative seizure.” Florida v. Royer,
460 U.S. 491, 500 (1983). Terry, like
Mimms and Wilson, recognized that
officers who briefly detain individuals for
investigation based upon articulable
suspicion need to protect themselves and
that concerns for the safety of the officer
and others justify certain limited steps
consistent with that concern. The Terry
Court explained:
[W]e can no t blind
ourselves to the need for law
enforcement officers to
protect themselves and other
prospective victims of
violence in situations where
they may lack probable
cause for an arrest. When
an officer is justified in
believing that an individual
whose suspicious behavior
he is investigating at close
r a n g e i s a r m e d a n d
dangerous to the officer or
to others, it would appear to
be clearly unreasonable to
deny the officer the power
to take necessary reasonable
measures to determin e
whether the person is in fact
carrying a weapon and to
neutralize the threat of
physical harm.
392 U.S. at 24. Nevertheless, the Court
remained cognizant of “the nature and
quality of the intrusion” of the person
detained. Id. It concluded that the
authority conferred on the Fourth
Amendment for a brief detention must be
“narrowly drawn. . . to permit a reasonable
search for weapons for the protection of
the police officer, where he has reason to
believe that he is dealing with an armed
and dangerous individual, regardless of
whether he has probable cause to arrest the
individual for the crime.” Id. at 27. Thus,
“[t]he manner in which the seizure and
search were conducted is . . . as vital a part
of the inquiry as whether they were
warranted at all.” Id. at 28.
As noted above, the Mimms Court
held that police may order the driver of a
lawfully stopped automobile to step out of
the car for the officer’s own protection,
stating that “a significant percentage of
murders of police officers occurs when the
officers are making traffic stops.” 434 U.S.
106, 110 (1977) (internal citation and
quotation marks omitted). The danger is
reduced with only minimal additional
intrusion by allowing officers to “control”
the situation to the extent of ordering
occupants out of the car. “Establishing a
face-to-face confrontation diminishes the
possibility, otherwise substantial, that the
driver,” or passenger, “can make
unobserved movements; this, in turn,
reduces the likelihood that the officer will
be the victim of an assault.” Id. “The risk
of harm to both the police and the
occupants is minimized if the officers
routinely exercise unquestioned command

-- 13 of 19 --

14
of the situation.” Michigan v. Summers,
452 U.S. 692, 702-03 (1981) (internal
citation omitted).7
However, my colleagues have
severed the rule from its analytical
moorings. They are applying the rule here
even though the police did not even
attempt to explain their actions in terms of
any perceived threat from Bonner getting
out of the car and any danger arose from
chasing, tackling, and subduing an
occupant of a stopped vehicle who was
merely trying to leave. Of course, I do not
mean to suggest that flight necessarily
eliminates the danger the Court was
concerned with in Terry, Mimms or
Wilson. However, I think it a stretch to
equate law enforcement’s need to control
a driver or passenger with the officers’
need to control Bonner here. Officer
English clearly testified that Bonner was
chased and handcuffed because he ran
away from a stopped car. No other
justification is offered, except by my
colleagues. Accordingly, I believe this
seizure can only stand only if it can be
justified as a search incident to a valid
warrantless arrest.
The government no doubt realized
this and therefore, as explained above, told
the suppression court that was precisely
the justification for the search. However,
absent probable cause to arrest Bonner, the
search can not be sustained as a search
incident to an arrest. United States v.
Myers, 308 F.3d 251, 265-66 (3d Cir.
2002). Moreover, even if we view this as
a Terry stop, I would still conclude that the
district court’s suppression order was
correct because there is nothing to
establish reasonable suspicion but
Bonner’s flight.
In addition, as noted above, the
scope and duration of the detention
authorized under Terry must be consistent
with the articulable suspicion underlying
the detention; that is the sine qua non of
Terry. It is the basis for eliminating the
requirement of probable cause before
detaining someone. As the Court stated in
Florida v. Royer, 460 U.S. 491, 500
(1983), “an investigative detention must
be temporary and last no longer than is
necessary to effectuate the purpose of the
stop. Similarly, the investigative methods
employed should be the least intrusive
means reasonably available to verify the
officer’s suspicions in a short period of
time.” Terry does not authorize police to
chase, tackle and handcuff one who runs
away from them based solely on flight.
Moreover, I do not believe other precedent
can support that level of intrusion either.
II. Detention Based on Flight Alone
To determine if Bonner was
legitimately detained based solely on his
flight, we must examine two Supreme
Court cases regarding an individual’s right
7 In United States v. Moorefield, 111
F.3d 10, 12-13 (3d Cir. 1997), we held that
police could order a passenger in a
lawfully stopped car to remain inside with
his/her hands in the air based upon the
same considerations of safety relied upon
in Mimms and Wilson.

-- 14 of 19 --

15
to walk away from police officers; Florida
v. Royer, 460 U.S. 491 (1983), and Illinois
v. Wardlow, 528 U.S. 119 (2000).
A. Florida v. Royer
In Royer, the Supreme Court held
that there is no obligation to submit to
inquiries when approached by police. The
Court also held that refusal to submit to
police questioning or cooperate with a
police inquiry does not, without more,
furnish the necessary grounds for
detention. 460 U.S. at 497-98.
Prior to Terry v. Ohio [],
any restraint on the person
amounting to a seizure for
the purposes of the Fourth
Amendment was invalid
unless justified by probable
cause. Terry created a
limited exception to this
general rule: search and
seizures are justifiable under
the Fourth Amendment if
there is articulable suspicion
that a person has committed
or is about to commit a
crime.
Id. at 498 (citations omitted).
Thus, the Royer Court reinforced
the fact that Terry did not create a license
to detain for investigation in the absence
of articulable suspicion. The Court also
stressed that “[d]etentions may be
‘investigative’ yet violative of the Fourth
Amendment absent probable cause.” Id. at
499. “In the name of investigating a
person who is no more than suspected of
criminal activity, the police may not carry
out a full search of the person. . . . Nor
may the police seek to verify their
suspicions by means that approach the
conditions of arrest.” Id. (citing Dunaway
v. New York, 442 U.S. 200, 207-09
(1979)).
The majority notes that Bonner was
the occupant of a stopped vehicle who “ran
from the scene of a legitimate traffic stop
without authorization or consent of the
officers,” and assume that analysis under
Mimms and Wilson is appropriate. Maj.
Op. at 6 (emphasis added). However,
under Royer, it is irrelevant that Bonner
left the vehicle without the police officers’
authorization. Royer did not condition an
individual’s right to go on his/her way on
first obtaining police permission. In fact,
conditioning the right to leave a police
inquiry on the street on obtaining
“authorization or consent” would totally
negate Royer’s holding. As the majority
correctly notes, a refusal to cooperate with
the police in a consensual encounter,
without more, can not co nstitute
reasonable suspicion for a stop. Maj. Op.
at 9 (quoting Florida v. Bostick, 501 U.S.
429, 437 (1991)).
The difficulty with analyzing this
case stems not from Royer but from
Illinois v. Wardlow, 528 U.S. 119 (2000).
The Court’s language there creates some
tension with its prior holding in Royer
even though the Wardlow Court was
careful to explicitly reaffirm the holding in
Royer.

-- 15 of 19 --

16
B. Illinois v. Wardlow
In Wardlow, the Court held that
police properly conducted a Terry stop of
an individual who fled after looking in the
direction of an approaching police caravan
in “an area known for heavy narcotics
trafficking.” 528 U.S. at 121. The Court
summarized Royer as holding “that when
an officer, without reasonable suspicion or
probable cause, approaches an individual,
an individual has a right to ignore the
police and go about his business.” Id. at
125. However, the Court also noted that
flight is one of the circumstances that must
be considered under Terry. Id. In doing
so, however, the Court reiterated that “any
refusal to cooperate, without more, does
not furnish the minimal level of objective
justification needed for a detention or
seizure.” Id. (quoting Florida v. Bostick,
501 U.S. 429, 437 (1991)).
A close reading of the Court’s
opinion in Wardlow resolves any apparent
tension. It was not Wardlow’s flight that
justified his detention. Rather, it was
flight in context with the other
circumstances in that case. The
circumstances included the fact that police
were “patrolling an area known for heavy
narcotics trafficking.” Id. at 121. In fact,
the police were traveling in a caravan
“because they expected to find a crowd of
people in the area, including lookouts and
[drug] customers.” Id. As the police
caravan approached Wardlow, police saw
him look at them and run, holding a bag as
he fled. Given the context, police could
reasonably conclude that he was a drug
dealer, purchaser, or lookout. Under those
c i r c u m s ta n c e s , a l l o w i n g o f f i c e rs
“confronted with such flight to stop the
fugitive and investigate further is quite
consistent with the individual’s right to go
about business or to stay put and remain
silent in the face of police questioning.”
Id. at 125. “It was in this context that
[police] decided to investigate Wardlow
after observing him flee.” Id. at 124
(emphasis added). When the pursuing
police officer caught Wardlow, he
immediately conducted a “pat-down search
for weapons. . . because in his experience,
it was common for there to be weapons in
the near vicinity of narcotics transactions.”
Id. at 121-22.
The context here is quite different,
and we should not be so quick to ignore
the Supreme Court’s pronouncement in
Royer that one who is approached by
police “need not answer any question put
to him; he may decline to listen to the
questions at all and may go on his way.”
Royer, 460 U.S. at 498 (citing Terry v.
Ohio, 392 U.S. 1, 32-33 (1968)). Of
course, Bonner did not walk away; he ran.
The Court in Wardlow noted that running
away is more consistent with guilt than
with going about one’s business. 528 U.S.
at 125 (“[U]nprovoked flight is simply not
a mere refusal to cooperate. Flight, by its
very nature, is not ‘going about one’s
business’; in fact, it is just the opposite.”).
That was clearly true in Wardlow’s case
because the area where he was found, the
drug activity there and the bag in his hand
combined with his flight to create the
articulable suspicion required under Terry.
Here, there is only flight, and my

-- 16 of 19 --

17
colleagues concede that “the Supreme
Court has never held that unprovoked
flight alone is enough to justify a stop.”
Maj. Op. at 8.
I doubt that the Court in Wardlow
intended to stretch its focus on running to
the extent that the rule in Royer would be
swallowed, especially since the Court
disclaimed any such intent. Thus, I am
skeptical that the Supreme Court intended
to announce a rule under Royer and
Wardlow that would cause the Fourth
Amendment to rest upon the speed with
which one chooses to leave an officer’s
presence. Under such a rule the
fundamental guarantees of the Fourth
Amendment would vary with a suspect’s
gait. Until the Supreme Court announces
such a rule, I am not willing to conclude
that someone in Bonner’s situation is free
to walk away from a lawfully stopped
vehicle, but not free to walk too quickly
away or run.
My colleagues repeatedly stress that
“Bonner prevented Officer Stewart from
controlling the stop by running from the
vehicle before the purpose of the stop was
even announced.” Maj. Op. at 7.8 I fail to
see the importance of whether the purpose
of the stop had been announced or not as
the majority’s analysis would surely be the
same if Officer Stewart had announced the
purpose of the stop. Moreover, an
individual who exercises his or her
constitutional right to leave a police
officer will inevitably prevent the police
officer “from controlling the stop” and
completing an investigation. Given the
o f f i c e r s ’ t e s ti m o n y, our Fourt h
Amendment inquiry must focus on
Bonner’s flight, not the resultant loss of
control or the inability of police to
announce the reason for the stop.
Bonner could have been briefly
detained inside of the vehicle, and he
could also have been detained pursuant to
an order to step outside of the vehicle. In
both situations, the detention would be
justified by very real concerns about the
officers’ safety. That is not what
happened. The majority’s focus misses the
point. Absent circumstances that permit
the kind of detention authorized by Mimms
and its progeny, this case must be analyzed
under the more restrictive lens of Terry,
Royer, and Wardlow. Under the precedent
of those cases, flight alone does not give
rise to probable cause, or reasonable
suspicion. Similarly, police can not rely
upon some undefined and untethered
notion of “control” to prevent someone
from walking away from an interrogation
in the absence of probable cause or
articulable suspicion where circumstances
8 See also Maj. Op. at 6-7 (“[A] police
officer has the authority and duty to
control the vehicle and its occupants”); id
at 7, n.1 (“. . .Bonner fled before the
purpose of the stop was announced, and
before the police could exercise the initial
control authorized by Wilson and other
cases.”); id. at 9 (“[Bonner’s] flight
prevented the police from discharging their
duty of maintaining oversight and control
over the traffic stop. . . .”).

-- 17 of 19 --

18
do not suggest the safety concerns so
central to Terry, Mimms and their progeny.
Of course, as I explain above, it is not the
arresting officers here who attempt to
explain Bonner’s arrest in terms of
“control”; it is the majority. The officers
quite simply state that Bonner was arrested
because he ran; and so he was.
Today we therefore hold that
“[f]light from a nonconsensual, legitimate
traffic stop (in which the officers are
authorized to exert superintendence and
control over the occupants of the car) gives
rise to reasonable suspicion.” Maj. Op. at
9. This is a troubling resolution of a close
and difficult case. Reasonable minds can
easily disagree about the application of
Wardlow and Royer to the circumstances
here. In the final analysis, it may well be
that the Supreme Court will resolve the
tension I see between those two cases.
However, until that day comes, I simply
can not agree with the majority’s
application of Supreme Court precedent.
III. The Procedural Posture of this
Prosecution
There is an additional, and
troubling aspect of this case that requires a
brief comment. Inasmuch as the
possession of the controlled substance
found in Bonner’s possession after his
arrest constituted an offense under both
state and federal law, prosecutors initially
had the option of prosecuting him in state
court or in federal court. For reasons not
apparent on this record, prosecutors
initially filed state charges and he was
prosecuted in state court where the
Commonwealth of Pennsylvania charged
Bonner with possession with the intent to
distribute crack cocaine as well as several
misdemeanors and summary offenses.
Defending himself in the Court of
Common Pleas, Bonner moved to suppress
the physical evidence seized from him
upon his arrest. He argued that the police
lacked reasonable suspicion to initially
detain him. Following a hearing on his
suppression motion, the Court of Common
Pleas granted Bonner’s motion and
suppressed the evidence that was seized
from him on November 29, 2001.
The Commonwealth thereafter
appealed the court’s suppression order to
the Superior Court. However, the
Commonwealth was not content to wait
until the state appellate court could
resolve its appeal. On March 13, 2002,
Bonner was indicted in federal court for
possessing a controlled substance with
intent to distribute. App. at 4, 9. The
Commonwealth thereafter withdrew its
appeal before the Superior Court of
Pennsylvania could rule on it.
The state suppression ruling was
based upon that court’s interpretation of
the Pennsylvania Constitution and the
ruling of the district court is, of course,
b a s e d u p o n t h e U n i t e d S t a t e s
Constitution.9 Accordingly, the Rooker-
9 The Pennsylvania Supreme Court has
held that Art. I, § 8 of the Pennsylvania
Constitution affords greater protection
than the Fourth Amendment of the United
States Constitution despite the almost

-- 18 of 19 --

19
Feldman doctrine is not implicated by
what can best be described as a
p r o s e c u t o r i a l “ s w i t c h e r o o . ” 1 0
Nevertheless, I am still concerned that
state and federal prosecutors apparently
chose to shift this case to federal court
while the appeal of the state court’s
suppression order was pending. I think it
fair to assume a significant level of
cooperation and communication between
state and federal prosecutors who executed
this hand-off in order to execute an end
run around the adverse decision of the
Court of Common Pleas. Although we
have jurisdiction here and must exercise it,
this procedural history does not reflect
well on the criminal justice system and
undermines the appearance of fairness so
important to its proper functioning. “[T]o
perform its high function in the best way[,]
‘justice must satisfy the appearance of
justice.’” In re Murchison, 349 U.S. 133,
136 (1955) (quoting Offutt v. United
States, 348 U.S. 11, 14 (1954)). In the
future, I would hope that concern for the
appearance of fairness will constrain
prosecutors from engaging in the kind of
unexplained tactical manipulation that
appears so evident here.
identical language of the two constitutional
prov isions. See Commonw ealth v.
Edmunds, 526 Pa. 374, 398 (1991)
(refusing to adopt a good faith exception
to the warrant requirement as set forth in
United States v. Leon, 468 U.S. 897
(1984)).
10 See District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482
(1983); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415-16 (1923). See also
Williamson B.C. Chang, Rediscovering the
Rooker Doctrine, 31 HASTINGS L.J. 1337,
1350 (1980) (“[I]f [federal and state] trial
courts could readily annul the judgments
of each other on the merits, the
prerequisite of finality in the judicial
system would be destroyed.”); 18 JAMES
WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE ¶ 133.30[3][a] (3d ed. 2003).
Under Rooker-Feldman, lower
federal courts cannot entertain a
constitutional claim if it has been
previously adjudicated in state court, or if
the relief requested in the claim requires
either determining that the state court's
decision is wrong or voiding the state
court’s ruling. Gulla v. North Strabane
Twp., 146 F.3d 168, 171 (3d Cir. 1998).

-- 19 of 19 --