United States of America v. Deandre Jackson & Quintel Martins

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1707, 23-1802
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UNITED STATES OF AMERICA
v.
DEANDRE JACKSON & QUINTEL MARTINS
Appellants
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 2-21-cr-00054-001; 2-21-cr-00054-002)
District Judge: Honorable Juan R. Sanchez
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Argued on May 2, 2024
Before: KRAUSE, CHUNG, and RENDELL, Circuit Judges
(Opinion filed: November 6, 2024)
Susan M. Lin [ARGUED]
Kairys Rudovsky Messing Feinberg & Lin

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718 Arch Street, Suite 501 South
Philadelphia, PA 19106
Counsel for Appellant DeAndre Jackson
Todd R Fiore
Todd Fiore Law
834 Chestnut Street
Philadelphia, PA 19107
Counsel for Appellant Quintel Martins
Kevin L. Jayne [ARGUED]
Sandra M. Urban
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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KRAUSE, Circuit Judge.
We ask much of our law enforcement officials, whose
daily responsibilities in maintaining order and public safety
can expose them to great personal risk. So while the Fourth
Amendment bars police officers from taking unnecessary or
excessively intrusive measures in conducting investigative

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stops, it allows them to take reasonable safety precautions
commensurate with the danger they confront.
In this consolidated criminal appeal, Appellants
DeAndre Jackson and Quintel Martins claim that officers took
excessive safety measures in conducting an investigative
traffic stop, so that the District Court erred in denying their
motions to suppress evidence recovered from that stop. We
cannot agree because, in the circumstances of the stop—in
which an officer found himself alone in a dark corner of a high-
crime neighborhood with three individuals he reasonably
suspected were driving a stolen vehicle and attempting to
evade him in the early hours of the morning—the precautions
taken by that officer and those who immediately joined him at
the scene were reasonable measures to ensure the suspects did
not possess dangerous weapons and would not otherwise
jeopardize their safety. Accordingly, we will affirm.
I. Background
A. Factual Background
At around 1:10 AM on the morning of October 2, 2019,
Collingdale Police Officer Thayer McCauley was patrolling
Delaware County, Pennsylvania with an unarmed trainee when
he spotted a car with a broken taillight, a damaged
Massachusetts license plate, and a scratched registration tag.
He entered the car’s information into a police database and
learned that its registration was expired and that its license tag
was not assigned to a particular vehicle make or model.
Because those vehicle code violations indicated that the car
might be stolen, Officer McCauley decided to conduct a traffic
stop. The car he was driving was a conspicuously marked
police car and when he pulled behind the vehicle, even before

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he engaged his police siren, the driver immediately made a
series of abrupt turns and sped off, going well over the speed
limit of 15 miles per hour. Even as the officer accelerated to
over 30 miles per hour and even though this was a residential
neighborhood, the vehicle quickly outpaced him and
disappeared from view.
About forty minutes later, at around 1:50 AM, Officer
McCauley saw the same vehicle traveling in the opposite
direction. He made a swift U-turn and continued in pursuit,
but as he pulled behind it, the car immediately and abruptly
turned into a vacant, dead-end lot. Officer McCauley pulled
behind the vehicle, blocking its exit from the lot. At that point,
Officer McCauley saw that there were three passengers in the
car and realized for the first time that he was outnumbered, all
the more so because the trainee who was with him was not only
unarmed but also not permitted to engage with suspects. Given
his belief at that point that the driver had been attempting to
evade him and that the car might be stolen, Officer McCauley
decided to take certain safety precautions that accompany what
his department colloquially called a “felony stop,” meaning a
stop for a suspected serious offense. Specifically, Officer
McCauley drew his firearm, pointed it at the vehicle, and
ordered its three occupants (who police later identified as
Appellant DeAndre Jackson, Appellant Quintel Martins, and
Christopher Winfield) to put their hands out of their windows
while he called for backup.
Within less than a minute, other officers arrived and
likewise positioned themselves with their weapons drawn and
pointed at the vehicle. Officer McCauley then ordered each of
the three suspects to exit the car, walk backwards towards the
officers, and drop to their knees. Martins, Winfield, and
Jackson each complied and were handcuffed in turn. Once

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the suspects were secured and the officers confirmed that there
were no other passengers in the car, they holstered their
weapons.
Jackson was handcuffed by Deputy Kenneth Baker,
who then did a “sweep” of Jackson’s belt line for any sharp or
dangerous weapons and felt a hard metal object in Jackson’s
right pocket. App. 295. When Deputy Baker asked about the
object, Jackson explained that it was a gun magazine and
informed Deputy Baker that there was a gun in the rear cup
holder of the car. He also admitted that he did not have a
concealed carry permit for the firearm.
When Deputy Baker returned to the car to remove the
gun and clear its chamber, about three minutes after the stop
began, he noticed “a fresh marijuana scent” in the backseat. Id.
at 304. He alerted his colleagues, and the officers searched the
car for evidence of illicit drug use. When they did not find any
drugs or drug paraphernalia in the cabin of the car, the officers
decided to search the trunk as well, noting that the smell was
more potent “towards the back” of the vehicle. Id. at 305.
There, the officers found a bag containing small vials, a scale,
latex gloves, and a mason jar containing marijuana residue.
They also found a second firearm and several articles of
clothing, including multiple ski masks and bandanas, which
matched the clothing worn by several men who had recently
perpetrated a series of armed robberies. Finally, the officers
recovered multiple cell phones from the vehicle, which would
later reveal additional evidence connecting the men to the
string of robberies.
In total, the investigative stop lasted about nine minutes.
After their search, the officers arrested Jackson, Martins, and
Winfield.

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B. Procedural Background
On February 25, 2021, a grand jury sitting in the Eastern
District of Pennsylvania returned a five-count Indictment
charging Jackson, Martins, and Winfield with: (1) conspiracy
to interfere with interstate commerce by robbery, in violation
of 18 U.S.C. § 1951(a) (Count 1); (2) interference with
interstate commerce by robbery and aiding and abetting, in
violation of 18 U.S.C. §§ 1951(a) and 2 (Counts 2 and 4); and
(3) using, carrying, and brandishing a firearm during and in
relation to a crime of violence and aiding and abetting, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts 3 and
5). Jackson and Martins both filed pre-trial motions to
suppress the physical evidence that the officers recovered from
their vehicle. In his motion, Jackson argued that: (1) the
officers’ investigative stop amounted to an arrest that was not
supported by probable cause; (2) the stop was unreasonably
prolonged beyond the time necessary for a valid traffic stop;
and (3) the search of the vehicle’s trunk was not supported by
probable cause. Similarly, Martins argued that he was arrested
without probable cause and that the officers did not have
probable cause to search the trunk of the vehicle.
In response, the Government argued that the officers’
measures were justified by the safety concerns that they
reasonably harbored, that the officers did not unnecessarily
prolong the stop, and that even if the officers did not have
probable cause to search the trunk of the car, the search was
still permissible under the automobile exception and as a
search incident to an arrest. In a footnote, the Government also
argued that “the evidence in the car would have been inevitably
discovered” even if the officers had not searched the car during
the traffic stop because “the car likely would have been towed
and subject to an inventory search.” App. 88 n.2. Finally, the

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Government contended that Jackson lacked standing to raise a
Fourth Amendment challenge to the officers’ search of the
vehicle because he was merely a passenger and did not have a
legitimate expectation of privacy in the interior of the vehicle.
The District Court held a suppression hearing on April
1, 2022 and denied both motions to suppress. The Court
determined that the traffic stop and the search were lawful,
explaining that “[Officer McCauley] offered substantial
justification for his suspicion that the Defendants may be
armed, and given the circumstances of the stop, he took certain
precautions to ensure his safety.” United States v. Martins, No.
21-54, 2022 WL 2805328, at *5 (E.D. Pa. July 15, 2022). In
so concluding, the Court credited Officer McCauley’s
testimony that he observed multiple “traffic code violations,”
including the broken taillight and expired registration; that the
area where he stopped the vehicle was “dark, secluded” and
was known to him as one where “criminal activity . . .
sometimes occurred”; and that the suspects outnumbered him.
Id. at 4. The Court further determined that the officers had
probable cause to enter and search the vehicle because Jackson
admitted that there was an illegal firearm in the car and because
the officers credibly testified that they smelled marijuana once
they entered the vehicle. The Court did not discuss the
Government’s argument that Jackson lacked standing to raise
his Fourth Amendment claim or its contention that the evidence
would have inevitably been discovered.
On November 29, 2022, Jackson pleaded guilty to
Counts 1, 2, and 4 of the Indictment, preserving his right to
challenge the Court’s denial of his motion to suppress. The
District Court sentenced him to 84 months in prison and a
three-year term of supervised release. A month later, Martins
pleaded guilty to all five counts of the Indictment, similarly

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preserving his right to challenge the Court’s denial of his
motion to suppress. The Court sentenced Martins to 186
months in prison and a five-year term of supervised release.
In this timely consolidated appeal, Martins and Jackson
ask us to reverse the District Court’s order denying their
motions to suppress and to vacate the Court’s judgment.
II. Jurisdiction and Standard of Review
The District Court had original jurisdiction under 18
U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C.
§ 1291. In a challenge involving a district court’s denial of a
motion to suppress, we exercise plenary review over the court’s
legal conclusions, but we review the court’s factual findings
only for clear error. See United States v. Delfin-Colina, 464
F.3d 392, 395–96 (3d Cir. 2006).
III. Discussion1
The Fourth Amendment prohibits “unreasonable
searches and seizures,” U.S. Const. amend. IV, and generally
requires that evidence obtained as the result of an unlawful
search or seizure be suppressed as “fruit of the poisonous tree,”
Wong Sun v. United States, 371 U.S. 471, 488 (1963); United
States v. Alexander, 54 F.4th 162, 170 n.11 (3d Cir. 2022). A
traffic stop of a vehicle is a seizure of the vehicle’s occupants
that is presumptively unreasonable unless it is “effectuated
1 Having reviewed the District Court’s relevant factual
findings, we determine that none are clearly erroneous.
Indeed, Appellants do not appear to argue on appeal that any of
its findings were in error. Thus, we will rely on the District
Court’s findings of fact in the discussion that follows.

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with a warrant based on probable cause.” United States v.
Robertson, 305 F.3d 164, 167 (3d Cir. 2002). Under the
“narrowly drawn” exception to that requirement that the
Supreme Court set forth in Terry v. Ohio, 392 U.S. 1, 27 (1968),
however, “an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot,” Illinois v. Wardlow, 528 U.S. 119, 123
(2000).
In assessing the lawfulness of a Terry stop, “our inquiry
is a dual one.” Terry, 392 U.S. at 19–20. First, we must
determine whether the stop was “justified at its inception—that
is, whether the stop was supported by reasonable suspicion at
the outset.” United States v. Johnson, 592 F.3d 442, 452 (3d
Cir. 2010) (internal quotation marks and citations omitted).
Second, because “[a] Terry stop that is supported by reasonable
suspicion at the outset may nonetheless violate the Fourth
Amendment if it is excessively intrusive in its scope or manner
of execution,” we must also determine “whether the manner in
which the stop was conducted was reasonably related in scope
to the circumstances which justified the interference in the first
place.” Id. at 451, 452 (internal quotation marks and citations
omitted).
On appeal, Jackson and Martins concede that the
officers had reasonable suspicion to initiate a Terry stop of their
vehicle, but they argue that the officers executed the stop in an
unreasonable manner by holding them at gunpoint, forcing
them to kneel, handcuffing them, and frisking Jackson when
the officers had no reason to believe that any of the suspects
were armed and dangerous. We disagree.

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A. Standing
Before we turn to the merits of Appellants’ Fourth
Amendment claims, we address the Government’s contention
that Jackson and Martins lack standing to challenge the
officers’ conduct. In order to challenge a search or seizure
under the Fourth Amendment, “a person must have a
cognizable Fourth Amendment interest in the place searched.”
Byrd v. United States, 584 U.S. 395, 410 (2018). Such an
interest exists only when the defendant has a “legitimate
expectation of privacy in the invaded place.” Rakas v. Illinois,
439 U.S. 128, 143 (1978).2
The Government argues that neither Appellant has
standing to make their Fourth Amendment claims. First, the
Government argues that Jackson does not have standing to
challenge the officers’ search because he was not the owner or
the driver of the vehicle and therefore “had no privacy interest
in the car or its contents.” Answering Br. 42. But this argument
misunderstands the nature of Jackson’s claim. It is true that
“[p]assengers in cars, unlike owners or licensees, have no
reasonable expectation of privacy in the interior of the vehicle
in which they are riding.” United States v. Mosley, 454 F.3d
249, 253–54 (3d Cir. 2006). But where, as here, a defendant is
2 As the Supreme Court has clarified, “standing” in the Fourth
Amendment context “should not be confused with Article III
standing, which is jurisdictional and must be assessed before
reaching the merits.” Byrd, 584 U.S. at 410–11. Instead,
“Fourth Amendment standing is subsumed under substantive
Fourth Amendment doctrine,” and “is not a jurisdictional
question and hence need not be addressed before addressing
other aspects of the merits of a Fourth Amendment claim.” Id.
at 411.

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arguing that police officers executed a traffic stop in an
unreasonable and unlawful manner, “the violation of [the
defendant’s] Fourth Amendment rights was the traffic stop
itself, and it is settled law that a traffic stop is a seizure of
everyone in the stopped vehicle.” Id. at 253 (citing Delaware
v. Prouse, 440 U.S. 648, 653 (1979)).
Put differently, Jackson’s Fourth Amendment challenge
“is about an illegal seizure by the police of the defendant,
pursuant to which evidence was discovered[,]” id., and he has
standing to make that challenge because the traffic stop was a
seizure of all of the vehicle’s occupants, see Brendlin v.
California, 551 U.S. 249, 259 (2007) (noting that “[i]f either
the stopping of the car, the length of the passenger’s detention
thereafter, or the passenger’s removal from it are unreasonable
in a Fourth Amendment sense, then surely the passenger has
standing to object to those constitutional violations and to have
suppressed any evidence found in the car which is their fruit”
(internal quotation marks and citation omitted)); see also
Mosley, 454 F.3d at 253 (noting that “passengers in an illegally
stopped vehicle have ‘standing’ to object to the stop, and may
seek to suppress the evidentiary fruits of that illegal seizure
under the fruit of the poisonous tree doctrine”).
The Government’s contention that “Martins does not
have standing . . . to assert Fourth Amendment rights over a
magazine in Jackson’s pocket, nor the gun found in the
backseat,” Answering Br. 40 n.7, fails for the same reason.3
3 Even if we found the Government’s reasoning persuasive, the
Government forfeited this argument because it did not
challenge Martins’ standing before the District Court. See
United States v. Jackson, 849 F.3d 540, 550 n.7 (3d Cir. 2017)
(explaining that, unlike arguments about Article III standing,

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Though Martins may not have had a direct privacy interest in
the magazine or the gun, he has standing to challenge the
officers’ seizure of the vehicle, and he may argue that the
magazine and gun were fruits of that unlawful seizure. See
Brendlin, 551 U.S. at 259; Mosley, 454 F.3d at 253.
Accordingly, both Appellants have standing to assert their
Fourth Amendment claims, and we now turn to the merits of
those two claims.
B. The Investigative Stop
A Terry stop that is supported by reasonable suspicion
at its inception “may nonetheless violate the Fourth
Amendment if it is excessively intrusive in its scope or manner
of execution.” Johnson, 592 F.3d at 451. To ascertain whether
a stop was excessively intrusive, we “review the manner in
which the . . . police conducted the Terry stop at issue . . . to
determine whether it was reasonably related in scope to the
initial justification for the stop and the officers’ legitimate
concerns for the safety of themselves and the general public.”
Id. at 452. Here, Appellants argue that the Collingdale officers
executed the investigative stop in an unreasonable and
excessively intrusive manner by holding them at gunpoint,
arguments challenging standing to raise a Fourth Amendment
claim are “waivable” because “standing in the Fourth
Amendment context is shorthand for a legitimate expectation
of privacy and is not a jurisdictional requirement to pursue an
argument” (internal quotation marks and citations omitted));
see also United States v. Dupree, 617 F.3d 724, 732 (3d Cir.
2010) (rejecting the Government’s “novel and interesting legal
argument” under Federal Rule of Criminal Procedure 12(e)
because “it was never raised in the District Court” and was
therefore “waived”).

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forcing them to kneel, handcuffing them, and frisking Jackson
when the officers “knew only that the vehicle had a broken
taillight and an expired Massachusetts registration that was not
associated with a particular car” and “had no reason to believe
the individuals were armed and dangerous.” Jackson Opening
Br. 21–22. But this account of the stop largely ignores the
fraught context surrounding Officer McCauley’s decision to
conduct a “felony stop,” and it fails to consider the totality of
the circumstances that the officers were facing based on the
factual findings of the District Court.
As the Supreme Court has long recognized, “roadside
encounters between police and suspects are especially
hazardous.” Michigan v. Long, 463 U.S. 1032, 1049 (1983).
An officer who approaches a suspicious vehicle has no way of
knowing who or what he will find behind the wheel and
necessarily exposes himself to a danger of attack. See United
States v. Moorefield, 111 F.3d 10, 13 (3d Cir. 1997) (“The
Supreme Court has repeatedly recognized that traffic stops are
dangerous encounters that result in assaults and murders of
police officers.”). That danger is “likely to be greater when
there are passengers in addition to the driver in the stopped
car.” Maryland v. Wilson, 519 U.S. 408, 414 (1997). Our
Constitution does not require officers to turn a blind eye to this
inherent danger and uncertainty; rather, an officer conducting
an investigative stop may take “necessary measures” to “assure
himself that the person with whom he is dealing is not armed
with a weapon that could unexpectedly and fatally be used
against him.” Johnson, 592 F.3d at 452 (quoting Terry, 392
U.S. at 23).
Even relatively intrusive police measures, like holding
a suspect at gunpoint or handcuffing him, are not unreasonable
per se. Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir.

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1995); see also United States v. Foster, 891 F.3d 93, 107 (3d
Cir. 2018) (explaining that “placing [the suspect] in handcuffs
while confirming that he was not armed and dangerous was not
outside the scope of a reasonable Terry stop”). Instead, we
must decide whether “the use of guns and handcuffs [is]
justified by the circumstances that authorize an investigative
detention in the first place.” Johnson, 592 F.3d at 452–53
(internal quotation marks and citation omitted). Similarly, a
police officer conducting an investigative traffic stop “may
conduct a reasonable search for weapons for his or her own
protection without violating the Fourth Amendment.” United
States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000). Like the
use of guns and handcuffs, a frisk is justified when an officer
has reason to think that he “is dealing with an armed and
dangerous individual.” Id. (quoting Terry, 392 U.S. at 27).
The touchstone of this inquiry is “the overall
reasonableness of [the officer’s] conduct in light of all the
circumstances.” Johnson, 592 F.3d at 452. Importantly, the
officer “need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger.” Terry, 392 U.S. at 27. In
reviewing an officer’s decisions, we “should not indulge in
unrealistic second-guessing,” United States v. Sharpe, 470 U.S.
675, 686 (1985), and we must “consider the totality of the
circumstances, including the police officer’s knowledge,
experience, and common sense judgments about human
behavior,” Robertson, 305 F.3d at 167.
We confronted a similar Fourth Amendment challenge
in United States v. Johnson. In that case, we held that police
officers did not execute a Terry stop in an unreasonable or
excessively intrusive manner when they surrounded a vehicle,

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drew their weapons, and handcuffed the vehicle’s occupants
because “the officers had specific, reliable facts indicating that
at least one of the [vehicle’s] occupants had been involved in a
shooting just minutes before.” Johnson, 592 F.3d at 453. We
explained that “[a]n officer with reasonable suspicion that the
occupants of a vehicle are armed and dangerous does not act
unreasonably by drawing his weapon, ordering the occupants
out of the vehicle, and handcuffing them until the scene is
secured.” Id.
The investigative stop conducted by the Collingdale
police officers likewise was supported by reasonable suspicion
and therefore did not violate Appellants’ Fourth Amendment
rights. As the District Court found, Officer McCauley
“reasonably believed the car was evading him” and “offered
substantial justification for his suspicion that the Defendants
may be armed,” necessitating “precautions to ensure his
safety.” Martins, 2022 WL 2805328, at *5. We cannot unsettle
these findings unless the District Court’s account of the
evidence is not “plausible in light of the record viewed in its
entirety” or we are “left with the definite and firm conviction
that a mistake has been committed.” United States v. Williams,
898 F.3d 323, 329 (3d Cir. 2018). Applying that deferential
standard, we agree with the District Court that Officer
McCauley’s decision to conduct a “felony stop” was justified
by a reasonable fear that the vehicle’s occupants were armed
and dangerous. First and foremost, Officer McCauley
reasonably believed that he was pursuing a stolen vehicle, not
only because the car had an expired registration and
mismatched tag but also because of the evasive maneuvers that
the driver took when Officer McCauley pulled behind him in a
fully marked police car.

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As a number of our Sister Circuits have recognized, “car
theft is a crime that often involves the use of weapons and other
instruments of assault that could jeopardize police officer
safety.” United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir.
2007) (Kavanaugh, J.); see also United States v. Hanlon, 401
F.3d 926, 929 (8th Cir. 2005) (“[W]hen officers encounter
suspected car thieves, they also may reasonably suspect that
such individuals might possess weapons.” (internal quotation
marks and citations omitted)); United States v. Bradley, Nos.
89-6299 & 89-6530, 1990 WL 124205, at *2 (6th Cir. Aug. 27,
1990) (per curiam) (holding that officers were “justified in
frisking both the driver and passenger of the car that they
believed to have been recently stolen” because it was
reasonable for them to believe that a person “suspected of
having recently been involved in a car theft[] might have been
armed and dangerous”); United States v. Williams, 7 F. App’x
876, 885 (10th Cir. 2001) (explaining that it was permissible to
frisk a driver suspected of stealing a van); but see Green v. City
& Cnty of San Francisco, 751 F.3d 1039, 1048 (9th Cir. 2014)
(“The fact that [the suspect] was stopped on suspicion of a
stolen vehicle does not by itself demonstrate that she presented
a danger to the officers.”).
But we need not decide today whether a suspicion of car
theft, standing alone, establishes a reasonable basis to believe
that a suspect is armed and dangerous because the totality of
the circumstances surrounding Officer McCauley’s
investigative stop gave him ample additional reasons to fear for
his safety. As the District Court explained, Officer McCauley
encountered the suspects in the middle of the night in a
dangerous, high-crime neighborhood. As soon as he attempted
to pursue them, the suspects drove erratically and
unpredictably in what Officer McCauley reasonably concluded

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were two attempts to evade him. When he first pulled behind
them in his fully marked police car, the suspects sped forward
and made multiple quick, evasive turns until he lost sight of
them; the second time, after Officer McCauley made a wide U-
turn to pull behind them, the suspects immediately turned off
of the main road into an abandoned lot from which there was
no other exit. At that point, it was 1:50 AM, and Officer
McCauley found himself outnumbered in a dark corner of a
dangerous area. Based on his extensive experience patrolling
the area, Officer McCauley was familiar with “the
neighborhood, the residences, and the type of criminal
activity,” and the District Court reasonably credited his
assessment about the dangerous circumstances he faced.
Martins, 2022 WL 2805328, at *4.
Under those conditions, any reasonable officer in
Officer McCauley’s position would have been apprehensive
about approaching the vehicle alone. See United States v.
Brown, 159 F.3d 147, 149–50 (3d Cir. 1998) (concluding that
flight from police and presence in a high-crime area provided
reasonable suspicion for a traffic stop); Foster, 891 F.3d at
105–06 (considering the time of day that a traffic stop occurred
and the number of people in the area in assessing the
reasonableness of the stop); see also United States v. Brooks,
982 F.3d 1177, 1180 (8th Cir. 2020) (“[The defendant’s]
presence in the stolen vehicle coupled with the driver’s
recalcitrant actions during the stop reasonably prompted
concerns as to officer safety and public safety . . . .”). Indeed,
Officer McCauley, an eleven-year police veteran who had
conducted approximately “800 to 1000” traffic stops, App.
196, explained during trial that he did not think it was wise to
engage the vehicle’s occupants alone in “some dark dead-end
driveway,” id. at 233.

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That professional judgment did not run afoul of
Appellants’ constitutional rights—the Fourth Amendment does
not require police officers to wade recklessly into danger, nor
does it demand that officers wait until they are certain a suspect
is armed and dangerous before taking reasonable measures to
protect themselves from potential harm. See Kithcart, 218 F.3d
at 219 (noting that “an officer need not be absolutely certain
that the individual is armed so long as the officer’s concern was
objectively reasonable” (internal quotation marks and citation
omitted)). Assessing the totality of the circumstances that he
faced, we conclude Officer McCauley had good reason to fear
for his safety and permissibly took “necessary measures to
determine whether [the suspects were] in fact carrying a
weapon and to neutralize the threat of physical harm.” Long,
463 U.S. at 1047 (quoting Terry, 392 U.S. at 24).
Despite these charged circumstances, Appellants
contend the officers did not have a sufficiently particularized,
objective basis to fear that they were armed and dangerous.
First, they make much of Officer McCauley’s testimony that
he “had no reason to believe that the occupants of the car were
armed and dangerous” before he initiated the stop. App. 277.
But Officer McCauley also testified that he was “concerned
about the behavior of th[e] car before [he] stopped it,” App.
288, and that he only chose to conduct a “felony stop” because
he was “concerned about officer safety,” id. at 199. And he
explained based on his extensive law enforcement experience
that “approaching [a] vehicle by yourself, especially not
knowing what’s inside the vehicle, could be dangerous,”
especially when the officer is “investigating [a] serious crime.”
Id. Officer McCauley also testified that, by the time that he
caught up to the suspects here, this danger was heightened

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because “we’re in essentially now some dark dead-end
driveway and I’m essentially by myself.” Id. at 233.
In any event, the question we must answer is not
whether the particular officer conducting the stop subjectively
feared for his safety, but whether “a reasonably prudent
[officer] would be warranted in the belief that his safety or that
of others was in danger.” Terry, 392 U.S. at 27. The Fourth
Amendment does not turn on the subjective intentions or
dispositions of particular officers, but instead “allows certain
actions to be taken in certain circumstances, whatever the
subjective intent” because “evenhanded law enforcement is
best achieved by the application of objective standards of
conduct, rather than standards that depend upon the subjective
state of mind of the officer.” Devenpeck v. Alford, 543 U.S.
146, 153 (2004) (cleaned up); see also Scott v. United States,
436 U.S. 128, 137–38 (1978) (recognizing that “it is imperative
that the facts be judged against an objective standard,”
“without regard to the underlying intent or motivation of the
officers involved,” and that “the fact that the officer does not
have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer’s action
does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.”
(internal quotation marks and citation omitted)). Accordingly,
“we are not limited to what the stopping officer says or to
evidence of his subjective rationale.” United States v. Brown,
232 F.3d 589, 594 (7th Cir. 2000) (internal quotation marks and
citation omitted).
Here, Officer McCauley’s subjective belief that the
suspects were not armed or dangerous did not “negate the
reality that [they were] acting erratically and somewhat
aggressively throughout the . . . evening” and therefore posed

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20
a serious risk to officer safety. Id. That is because an officer’s
bravado cannot transform a lawful stop into an unlawful one,
and a particularly courageous officer “should not be penalized
because he did not provide a very sensationalized version of
the facts in order to shore up his justification for” his conduct.
Id. And for that reason, courts of appeals have upheld the
lawfulness of protective frisks and searches even when the
detaining officers did not subjectively fear that they were in
danger. See, e.g., United States v. Barnett, 505 F.3d 637, 640
(7th Cir. 2007) (explaining that a protective frisk was justified
“even if [the officers] did not subjectively fear [the defendant]
was armed when they announced that they intended to frisk
him, because the legitimacy of their search stemmed at all
times from whether a protective frisk was objectively
reasonable under the circumstances”); Brown, 232 F.3d at 594–
95 (observing that the detaining officer was “[p]erhaps . . . not
the type of officer who can articulate readily his sense of fear
or perhaps his own particular disposition makes him less
forthcoming about these potentially dangerous situations,” yet
holding that “a reasonable police officer would have wondered
whether [the suspect] posed a threat to himself or herself or
others.”).
We too must assess the circumstances that the officers
faced “against an objective standard” and ask 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.” United States v. Foster, 376
F.3d 577, 585 (6th Cir. 2004) (internal quotation marks and
citation omitted); see also Brown, 232 F.3d at 594 (“[W]e look
to the record as a whole to determine what facts were known
to the officer and then consider whether a reasonable officer in
those circumstances would have been suspicious.” (internal

-- 20 of 40 --

21
quotation marks and citation omitted)). We consider the
objective circumstances surrounding the investigative stop,
such as the time of night when Officer McCauley encountered
the car, whether the neighborhood he was patrolling was
particularly dangerous or “relatively crime-free,” and any
evasive or suspicious conduct that the officers witnessed.
Foster, 891 F.3d at 106. And for the reasons explained, a
prudent officer in Officer McCauley’s position would have
reasonably feared that the suspects were armed and dangerous
based on those objective factors.
Second, Appellants argue that Deputy Baker’s frisk of
Jackson violated the Fourth Amendment even if the rest of the
investigative stop did not because, by the time the pat-down
occurred, the officers had no reasonable basis to suspect that
Jackson was armed or dangerous.4 They emphasize that
4 We do not agree with the Government’s contention that
Appellants forfeited their separate argument concerning
Deputy Baker’s frisk because they did not challenge the frisk
in their suppression motions before the District Court and
“[o]nly on appeal, for the first time, did Jackson argue that an
officer’s safety frisk of him was not supported by reasonable
suspicion[.]” Gov. Suppl. Letter Br. 2 (May 31, 2024). After
all, Deputy Baker’s account of the frisk only emerged during
his testimony at the suppression hearing and, though a close
call, we conclude that Appellants’ challenge to the frisk at that
point was sufficient to “put the District Court on notice of the
legal argument.” Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596,
607 (3d Cir. 2011). Still, the tendency of both parties to merge
the Fourth Amendment analyses of the stop and the frisk is
understandable as both occurred in a continuous course of
conduct, within the same few minutes, and, as we explain

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22
Jackson had complied with all of the officers’ orders and that
Deputy Baker only frisked Jackson because he “usually” did
so after handcuffing suspects who might “have needles or
anything in their pocket of that nature” that could “stick you,”
App. 294–95, not because he had a specific or particularized
belief that Jackson was armed. But again, we apply an
objective standard, not a subjective one, and while we consider
the lawfulness of a traffic stop at each step, including whether
a frisk is justified by reasonable suspicion, see Moorefield, 111
F.3d at 12, the circumstances of that stop necessarily inform
the reasonableness of an attendant frisk.
Where, for example, officers observe a traffic infraction
but have no reasonable basis to believe that the vehicle’s
occupants are armed or dangerous before they conduct the
stop, we require the officers to point to “behavior . . . consistent
with the behavior of a person trying to conceal something.” Id.
at 14. But where, as here, an officer reasonably fears that a
suspect is armed and dangerous before initiating the stop, and
the occupants have already taken steps “consistent with the
behavior of a person trying to conceal something” by
attempting to evade the police, id., that fear is no less
reasonable when the suspect steps outside the car than when he
stays inside. Here, only two minutes had elapsed between the
beginning of the stop and Deputy Baker’s frisk. The officers’
reasonable fear that the suspects were armed and dangerous did
not dissipate in that time simply because the suspects had
exited their vehicle. Particularly where police officers are
forced to “act[] in a swiftly developing situation,” we will not
below, the danger informing the frisk arose directly from the
circumstances preceding the stop.

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23
“indulge in unrealistic second-guessing.” Sharpe, 470 U.S. at
686.
Nor was Deputy Baker’s protective frisk for weapons
unlawful simply because Jackson had complied with the
officers’ instructions and was handcuffed at the time when the
pat-down occurred. As we have recognized, it is simply untrue
that “by handcuffing a suspect, the police instantly and
completely eliminate all risks that the suspect will flee or do
them harm.” United States v. Shakir, 616 F.3d 315, 320 (3d
Cir. 2010) (quoting United States v. Sanders, 994 F.2d 200, 209
(5th Cir. 1993)). To the contrary, “[h]andcuffs limit but do not
eliminate a person’s ability to perform harmful acts,” United
States v. Pope, 910 F.3d 413, 417 (8th Cir. 2018), which is why
unsuspecting officers are assaulted and killed by handcuffed
suspects every year, see Shakir, 616 F.3d at 321 (noting
incidents of police officers killed by handcuffed suspects).
That danger is of particular concern in the context of vehicle
stops, where, as then-Judge Kavanaugh observed, “[e]very
year . . . , about 6,000 police officers are assaulted—and about
10 officers are killed.” Bullock, 510 F.3d at 349 (citing a 2006
FBI report on law enforcement officers killed and assaulted
each year). And as these deadly hazards are “widely known to
law enforcement personnel,” Sanders, 994 F.2d at 209, we
cannot say that Deputy Baker’s decision to frisk Jackson, even
after he was handcuffed, was an unreasonable protective
measure, see Shakir, 616 F.3d at 320.5
5 See also United States v. Pope, 910 F.3d 413, 417 (8th Cir.
2018) (“Though it is more difficult for him to do so, a person
in handcuffs can still use a weapon to injure, and, of course,
handcuffs can sometimes fail.”); Sanders, 994 F.2d at 209
(“Albeit difficult, it is by no means impossible for a handcuffed

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24
In sum, in conducting the stop of Appellants’ vehicle,
the Collingdale police officers did not take “any unreasonable
steps in attempting to ensure that [they] would not become one
of these statistics.” Bullock, 510 F.3d at 349 (internal quotation
marks and citation omitted). The District Court thus did not
err in denying Appellants’ motion to suppress.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment
of the District Court.
person to obtain and use a weapon concealed on his person or
within lunge reach, and in so doing to cause injury to his
intended victim, to a bystander, or even to himself.”); United
States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (noting
that “suspects have been known to reach for weapons even
when handcuffed”).

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1
United States v. Jackson, No. 23-1707, 23-1802
RENDELL, Circuit Judge, dissenting:
In 1977, a divided Supreme Court permitted an officer
to ask a driver to step out of a vehicle in a run of the mill traffic
stop. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per
curiam). The dissent vehemently opposed the Court’s
departure from “‘the central teaching of this Court’s Fourth
Amendment jurisprudence’—which has ordinarily required
individualized inquiry into the particular facts justifying every
police intrusion—in favor of a general rule covering countless
situations.” Id. at 116 (Stevens, J.) (dissenting). Over the
succeeding decades, we have “steadily increas[ed] the
constitutional latitude of the police[.]” United States v. Mosley,
454 F.3d 249, 252 (3d Cir. 2006). But today’s opinion erodes
Fourth Amendment protections beyond anything ever
previously contemplated, giving police latitude to not only ask
occupants to step out of the vehicle, but to do so at gunpoint,
order them to walk backwards, kneel on the ground, handcuff
them, and frisk them as a matter of course and without
reasonable, particularized suspicion that they are armed and
dangerous. The Fourth Amendment is meant to protect against
such inappropriate intrusions by law enforcement. For that
reason, I dissent.
When a police officer has a hunch that a car has been
stolen, but has no reason to believe that the occupants of the
car are armed or otherwise dangerous, what should he do?
Presumably, he should wait for back up, as happened here, and
then approach the car and ask the driver for his license and
vehicle registration. What I suggest he is not permitted to do is
have the occupants removed from the vehicle, put on their

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2
knees and handcuffed, and then frisked. The record before us
should leave little doubt that what the police did here in
removing the occupants and handcuffing them was excessive,
and the frisk that followed was totally beyond what the Fourth
Amendment allows. Indeed, Officer McCauley repeatedly
admitted that he did not have any reason to believe the
defendants were armed and dangerous. Thus, all the evidence
flowing from this Fourth Amendment violation should have
been suppressed. Reading the majority opinion, I am left with
the impression that we are looking at two different records. The
record before us makes clear that what the police did was
uncalled for.
I
I find it important at the outset to highlight a few facts
in the record that were not the focus of the majority opinion, so
as to paint the complete picture. The majority rightly points out
that we review the District Court’s factual findings for clear
error. United States v. Williams, 417 F.3d 373, 376 (3d Cir.
2005). However, I urge that even with this heightened standard
of review, the record speaks for itself, and the District Court
erred in its relevant factual findings.
The majority affirms and relies on the District Court’s
factual findings that “Officer McCauley reasonably believed
that he was pursuing a stolen vehicle, not only because the car
had an expired and mismatched registration tag but also
because of the evasive maneuvers that the driver took when
Officer McCauley pulled behind him in a fully marked police
car.” Majority Op., Section III.B.
First and foremost, even under clear error review, few
facts in the record support a “belief” that the car was stolen.

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3
When Officer McCauley ran the license plate in his database,
there was no report that the car was stolen. App. 254 (“The tag
was not stolen status.”); see also App. 263 (testifying that the
vehicle’s registration gave no indication that the car was stolen,
that the owner of the vehicle had wanted cards, or indication of
criminal record or gang activity). The car was registered to
Cecil Johnson, Jr., for whom there were no warrants out for
arrest. App. 255. The majority writes that the registration tag
was “mismatched.” Majority Op., Section III.B. Really,
though, the record reflects that the registration tag was linked
to no car, not that it was mismatched. App. 255 (“There was no
make or model assigned to the registration.”). Importantly,
Officer McCauley testified that he was unaware of
Massachusetts’s registration procedures and if this was even
unusual. App. 255. Nothing in the database supported a
reasonable belief that the defendant’s vehicle was stolen; a
hunch, perhaps, but not a reasonable belief.
Second, the record does not support the majority’s
characterization that the driver of the vehicle “drove erratically
and unpredictably” or Officer McCauley’s belief that the driver
was evading him. Majority Op., Section III.B. While Officer
McCauley testified that he believed the Nissan was speeding,
he did not clock the speed of the Nissan, could not say how fast
it was going, and did not observe the Nissan running any stop
signs or traffic lights. App. 127-30. The dashboard video from
the first encounter with the vehicle does not corroborate
Officer McCauley’s testimony, and simply shows the officer
turn onto the street after the defendants left the Wawa gas
station. Gov’t Ex. 1A at 00:48. He lost sight of the vehicle
when it left the Wawa and spent 40 minutes trying to locate it.
App. 217. The video does not depict the defendants’ vehicle at
all, much less does it capture the defendants “[speeding]

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4
forward and [making] multiple quick, evasive turns.” Majority
Op., Section III.B. Rather, the video shows the officer driving
erratically and unpredictably, through a very empty, quiet
neighborhood. The officer’s post hoc characterization is
nothing more than that. Nor does the dashboard camera video
for the second encounter show the driver driving erratically or
evasively.1 Quite the opposite, in fact. The video depicts the
driver of the vehicle driving normally and using his turn signal
before he turned into what turned out to be a dead-end street.
App. 229-30, 258-60; Gov’t Ex. 1B at 00:28. The officer never
turned on his emergency lights or sirens to pull over the vehicle
during either encounter,2 and the officer was driving a slick top
vehicle3 at night. The objective evidence reveals nothing
abrupt, erratic, or evasive in the driver’s behavior.
The prosecution further insists, and the majority
accepts, that the fact that the defendants turned into a “dark
corner of a dangerous area” is further evidence that the
1 Office McCauley testified that when he encountered the
defendants’ vehicle the second time, he “[did not] observe this
motor vehicle engage in any motor vehicle code violations.”
App. 133.
2 App. 231. Officer McCauley testified that he did not turn on
his emergency lights during the first encounter with the
vehicle, and regarding the second encounter, explained that he
did not turn on his emergency lights because he “was trying to
catch up to the vehicle.” App. 231.
3 “It’s a slick top, so the light bar is located inside the vehicle.
But it’s equipped with a push bar and an LPR system.” App.
252. Officer McCauley also testified that the silhouette of the
top of the car lacks overhead lights. App. 272.

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5
defendants were evading the police. Majority Op., Section
III.B. But the record reflects, and Officer McCauley conceded,
that at least two apartments have their entrances off this
“alley:”:
Q: There’s another vehicle there back—in, in the
back in that street, correct?
A: Right here, yes.
Q: Correct. And that’s because there are
apartments, you said there are apartments right
there?
A: To the right.
Q: Correct. And at this point, you did not know
if Mr. Martins or any of the passengers were
stopping to go into one of those apartments. Is
that fair to say?
A: Fair to say.
Q: So other—I, I agree that it’s late at night and
the businesses are closed, but there is a potential
legitimate purpose of turning onto that block to
get, to, to access those apartments, correct?
A: Correct.

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6
App. 260. For all we know, the occupants could have been
intending to visit someone or pick someone up from these
buildings.4
This is the “totality” that the majority urges supported
the officers’ conduct that followed. Officer McCauley decided
to make a “felony stop.” 5 He pulled up behind the vehicle,
instructed the occupants to put their hands in the air (which
they did), and called for backup. Several officers arrived and
the occupants complied completely when told to exit the
vehicle, walk backwards, and kneel on the gravel until they
were ultimately handcuffed. No behavior on the part of the
occupants would give rise to a suspicion of danger or that crime
was afoot. Rather, Office McCauley testified that the
defendants were totally compliant.6 Officer McCauley
4 See also App. 146 (“Q: This is a residential neighborhood,
correct? A: Correct.”).
5 Curiously, Officer McCauley testifies that when he first
received the report back about the expired registration, he
wanted to “conduct a traffic stop on the vehicle,” App. 206, “to
stop and ID” the driver, App. 105. And when he encountered
the vehicle the second time, he again testified that he made a
U-Turn to “conduct a traffic stop.” App. 219. However, when
he pulled up behind the vehicle, he began to “conduct a felony
stop”, App. 108, 231, which he testified is a stop for
“investigating a serious crime,” App. 199. There is nothing,
other than perhaps his frustration at driving around for 40
minutes in order to locate the vehicle, that would cause him to
conduct this more serious stop.
6 Regarding the moments after he followed the vehicle and
turned onto the street, Officer McCauley testified:

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7
repeatedly testified that he had no reason to believe the
occupants of the car were dangerous or armed.7
Q: So it’s not like the driver immediately turned
off his vehicle and turned the lights off to try to
avoid being detected by the lights of the vehicle.
Is that fair?
A: That’s fair.
Q: Okay. And nobody’s bailing out of the car at
this point and trying to flee from you, correct?
A: That’s correct.
App. 261. And when he initiated the stop:
Q: Okay. You did not observe anybody in the
vehicle committing any felonies, correct?
A: That’s correct.
Q: You did not see any furtive movements from
the passengers in the vehicles, correct?
A: No, they were compliant.
App. 263-64.
7 “Q: At that point in time, you had no reason to believe that
the occupants of the car were armed and dangerous, is that
correct? A: That’s correct.” App. 277; see also App. 140, 145-
46, 264 (“Q: Would you agree with me that nowhere in [the
incident report], does it say anything about officer safety? A: I,
I don’t have the [report] here, but I do not believe that was in
there, no.”). The majority urges that Officer McCauley’s
repeated admission that he had no reason to believe that the
occupants were armed or dangerous is irrelevant because we
use an objective standard, asking whether “a reasonably
prudent [officer] would be warranted in the belief that his
safety or that of others was in danger.” Majority Op., Section

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8
All we have, rather, is three Black men in a car, driving
around at night. Yes, the car had a broken taillight, an out-of-
state license plate, and a registration tag that had expired earlier
that year and that was not linked to any vehicle—as Officer
McCauley testified, “all infractions in Title 75 of the Vehicle
Code.” App. 216. There were no reports the vehicle was stolen
and no warrants out for the owner of the vehicle.
The District Court and the majority have allowed the
prosecution’s gloss of events to obscure what really happened.
What really happened was nothing very different from what
would normally result in a routine traffic stop that could
reasonably lead to further inquiry—as Officer McCauley
himself seemed to acknowledge—not a “felony stop.” See n.5,
supra. Not only are the facts very clear, but the law regarding
what police can and cannot do in such a situation is equally
clear.
II
III.B (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). While we
do use an objective standard when determining whether a
suspect’s Fourth Amendment rights were violated, certainly
his perception of the situation informs this reasoning. Can we
really determine that a “reasonably prudent officer” would
believe a driver in this situation would be armed and
dangerous, despite the fact that this officer—who the majority
notes is a veteran officer who had conducted approximately
1000 traffic stops—testified under oath repeatedly that he had
no reason to believe the occupants of the vehicle were armed
and dangerous?

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9
Some intrusions into personal liberties are so minor that
the Supreme Court has held that they are always justified
during a traffic stop given the need for officer and occupant
safety. Specifically, officers can order both the driver and the
passengers to step out of the car, an additional intrusion that
has been characterized as “de minimis.” Mimms, 434 U.S. at
111; Maryland v. Wilson, 519 U.S. 408, 415 (1997) (extending
Mimms to passengers).
But beyond the de minimis intrusions that are justified
given the need for officer and occupant safety, the
intrusiveness of the stop must be justified by the
circumstances. Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d
Cir. 1995); see also Washington v. Lambert, 98 F.3d 1181,
1187 (9th Cir. 1996) (“Under ordinary circumstances, when
the police have only reasonable suspicion to make an
investigatory stop, drawing weapons and using handcuffs and
other restraints will violate the Fourth Amendment.”). The
drawing of a weapon and handcuffing constitutes a far greater
intrusion on the occupants, and “remain[s a] hallmark of a
formal arrest.” United States v. Patterson, 25 F.4th 123, 143
(2d Cir. 2022) (internal quotations omitted). While there is no
per se rule that drawing guns and handcuffing exceeds the
bounds of a lawful Terry stop, the issue is whether, based on
the totality of the circumstances, a reasonably prudent officer
would be warranted in the belief that his or her safety, or that
of others, was in danger. Terry, 392 U.S. at 27; United States
v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000); United States v.
Valentine, 232 F.3d 350, 353 (3d Cir. 2000).
Terry’s reasonable suspicion standard “is a less
demanding standard than probable cause and requires a
showing considerably less than preponderance of the
evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Still,

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10
an officer must articulate more than a mere “hunch.” Id. at 124.
We have justified the brandishing of a gun in stops where
credible tipsters, informants, or other information in the record
demonstrate that the occupants had been involved in a
shooting, had a gun, or otherwise were involved in violent
criminal activity. See, e.g., United States v. Torres, 961 F.3d
618, 621 (3d Cir. 2020) (holding that the officer’s brandishing
a gun was justified when a witness flagged down a patrolling
officer, pointed to the only pedestrian on a bridge, and told the
officer that he had just watched the man pull out a gun and fire
it twice into an old building). And while the majority is correct
that we can rely on circumstantial evidence like the stop
occurring in a high crime area at night or information from the
officer’s own training and experience, we can find no case—
until today—that has justified the use of guns and handcuffs to
expand the scope of a traffic stop absent specific and credible
information about the occupant’s involvement in violent
criminal activity.8
8 The caselaw is clear: reasonable suspicion of danger requires
something more than just a hunch, a dark night, and a “crime-
ridden” area. Most of the caselaw has held there was
reasonable suspicion to draw a gun on a suspect at the stop
because a tipster, informant, or incident report stated that the
suspect was armed. See, e.g., United States v. Sanford, 813
F.3d 708, 713 (8th Cir. 2016) (officer received call from the
nightclub about a threat of violence and had knowledge and
experience with the nightclub and the surrounding area);
United States v. Edwards, 761 F.3d 977, 982 (9th Cir. 2014)
(defendant was the only person in the relevant vicinity who
matched the description of a man reported to be shooting at
passing cars just minutes before); United States v. Windom,

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11
The majority relies on our opinion in United States v.
Johnson, where we held that a Terry stop was not excessively
intrusive even though the police response there was similar to
the police response here. 592 F.3d 442 (3d Cir. 2010). But
Johnson is actually the strongest case for the defense. There,
as the majority notes, “the officers had specific, reliable facts
indicating that at least one of the taxicab’s occupants had been
involved in a shooting just minutes before.” Id. at 453
(emphasis added). A shooting had been reported by an
eyewitness who had heard gunshots, called 911 and gave
863 F.3d 1322, 1333 (10th Cir. 2017) (officers received a tip
that a suspect had flashed a firearm in public and proclaimed
gang affiliation); United States v. Elston, 479 F.3d 314, 315-16
(4th Cir. 2007) (police responded to 911 call on a drunk driver
who had a prior conviction of domestic assault and had
threatened to use the handgun in his truck); cf. United States v.
Foster, 376 F.3d 577, 587 (6th Cir. 2004) (officer testified that
because of his experience with dealing with individuals on PCP
who “can be become extremely violent,” he believed that the
defendant, who smelled like PCP, was dangerous and used
handcuffs to detain him).
On the other hand, some cases found brandishing guns
unjustified when officers could point to no articulable facts that
threatened their safety. In United States v. Del Vizo, the Ninth
Circuit held that even though the officers suspected the
defendant was a drug trafficker, because he was cooperative
and officers had no reason to believe he was dangerous,
handcuffing and brandishing guns was unjustified. 918 F.2d
821, 824-25 (9th Cir. 1990).

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12
contemporaneous updates regarding the shootout, the location,
and the direction the vehicle went. Id. at 445. The officers
corroborated the tip when they saw the taxi driving in the
direction and location the tipster identified. Id. at 450. We
found that the seizure of the taxi and brandishing of weapons
was reasonable under the circumstances but reached that
conclusion because “[t]he officers responding to Anderson’s
911 call reasonably suspected that the taxi’s occupants had
been involved in a physical altercation and shooting just
minutes before.” Id. at 453. We can only wonder as to why the
majority relies on Johnson and question its failure to
acknowledge that the “specific, reliable” facts in Johnson that
made surrounding a vehicle, drawing weapons, and
handcuffing occupants reasonable are totally lacking here. In
Johnson, we specifically cautioned against police conduct that
was more intrusive that necessary. Id. (affirming because the
officers “took only ‘such steps as were reasonably necessary’”)
(emphasis added). The officers’ conduct here, without any
reasonable suspicion that the occupants of the vehicle were
armed and presently dangerous or had committed a crime, was
clearly excessive.
The majority further urges that because the officer
suspected that the vehicle was stolen, it was reasonable for
Officer McCauley to believe that the occupants were armed
and dangerous. Majority Op., Section III.B. Nonetheless, the
majority cites to no case law in our Circuit for this proposition,
and the cases from our Sister Circuits to which the majority
cites have more evidence than here to support a reasonable
belief that the car was indeed stolen.9 The evidence
9 See United States v. Bullock, 510 F.3d 342, 344 (D.C. Cir.
2007) (justifying a frisk of a suspect when the suspect made an

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13
“supporting” a belief that the vehicle was stolen—namely, an
out of state, expired tag—does not compare with the evidence
in the cited cases. And Officer McCauley never asked the
driver if he was or knew Cecil Johnson, Jr., to whom the car
was registered. Further, the majority concedes that at least one
of our Sister Circuits has held that suspicion a car is stolen is
not enough by itself to give rise to reasonable suspicion that an
occupant of a vehicle is armed and dangerous. Green v. City &
Cnty. of San Francisco, 751 F.3d 1039, 1048 (9th Cir. 2014).
So too here, particularly when that suspicion is no more than a
hunch.
Given the facts in the record, the government has not
justified the officers’ use of guns and handcuffs here. There
were several officers at the scene before the defendants were
told to exit the vehicle. How could what the officers did
thereafter be reasonable? The facts here are distinguishable
from Johnson, which held that drawing guns and handcuffing
the occupants of the car was reasonable. Our case law requires
information beyond a “hunch” to establish a reasonable
suspicion of violent activity. This can range from a credible tip
to a specific 911 call with officer corroboration to an officer
noticing, before the officer brandishes his weapon, that the
suspect has a weapon or is otherwise evincing violent behavior.
Nothing of the sort is present here. At the time of the escalation
of the seizure, Officer McCauley had no articulable, reasonable
illegal turn, did not have registration, and could not identify the
car’s owner); United States v. Hanlon, 401 F.3d 926, 927 (8th
Cir. 2005) (justifying a frisk when the suspect was shaking
profusely, avoiding eye contact, and gave a story about
purchasing the truck recently from a man in one town when the
truck was registered to a woman in a different town).

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suspicion that the occupants were a threat to his safety or that
of the public. The majority cites numerous cases for isolated
propositions regarding danger, suspicion, and objectivity but
cites no case where a court has justified the excessive conduct
that occurred here, following the relatively benign activity of
the driver of the vehicle. In affirming the District Court, the
majority would allow an officer to pull over any individual that
committed a traffic violation at night in any one of a number
of questionable neighborhoods and immediately brandish a
weapon and handcuff the occupants of the vehicle. “[I]magine
the general terror citizens of the United States would feel if this
show of force by police was justified for minor traffic
violations.” Martins Br. at 11.
For these reasons, the traffic stop exceeded the scope
justifiable under the Fourth Amendment and I would suppress
all evidence found during the stop.
III
While I would hold that the conduct of the officers
before Jackson was frisked was too intrusive given the facts, I
would also hold, in the alternative, that it was in violation of
the Fourth Amendment to frisk Jackson. That alone justifies
the suppression of the evidence found thereafter. Officers may
frisk a passenger of a car during a traffic stop only if they have
a reasonable belief that the passenger is armed and dangerous.
Arizona v. Johnson, 555 U.S. 323, 326-27 (2009); Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993). To justify the pat down
of a suspect during a Terry stop, “the issue is whether a
reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.” Terry, 392 U.S. at 27; Mimms, 434 U.S. at 111-12
(holding that viewing a bulge in the defendant’s pants was

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sufficient to provide reasonable suspicion that defendant was
armed and dangerous). There is no requirement that the officer
“be absolutely certain that the individual is armed.” United
States v. Moorefield, 111 F.3d 10, 14 (3d Cir. 1997) (quoting
Terry, 392 U.S. at 27). Still, the officer must nonetheless point
to “specific and articulable facts” warranting the pat down for
weapons. Id. at 13 (quoting Terry, 392 U.S. at 21).
To justify a pat down during a Terry stop, the officer
must be able to point to facts specific to the individual being
frisked. While the totality of the circumstances can factor into
whether the officer had reasonable suspicion that the individual
was armed and dangerous, the Supreme Court has ruled
presence in a “high crime area”, standing alone, does not justify
a frisk. Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990).
Neither is the fact that an individual is present at a location
where a constitutional search or seizure is taking place
sufficient. United States v. Murray, 821 F.3d 386, 393 (3d Cir.
2016). Moreover, the officer’s reasonable belief that the
suspect is armed must arise prior to initiating the pat down.
Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979).
The pat down here was unwarranted and
unconstitutional. Officer McCauley did not (and cannot) point
to any “specific and articulable” facts warranting a pat down.
As noted above, he repeatedly testified under oath that he had
no reason to believe that the occupants were armed and
dangerous. App. 140, 145-46, 277. A reasonable officer would
have no basis to believe otherwise. There must be specific and
articulable facts that would cause a reasonable person to
believe, before the pat down occurs, that the defendant is armed
and dangerous. McCauley cannot even say he had a subjective
belief Jackson was armed and dangerous. Here, at the time of
the frisk, Jackson had been fully compliant, was removed from

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the car, kneeling on gravel, facing away from the officers, with
his hands handcuffed behind his back. Any danger had, at the
point of the frisk, been neutralized. See Graham v. Connor, 490
U.S. 386, 396 (1989) (outlining “objective reasonableness”
standard for evaluating police use of force).
The pat down of Jackson, resulting in the discovery of
the gun magazine in his pocket, led to search of the car. All the
evidence found in the search of the car must be suppressed.
IV
Officer McCauley had a trainee in his car for the
evening. A proper training exercise would have been to
activate his lights, pull over the vehicle, and ask the driver for
his license and registration. Instead, perhaps frustrated by
having lost track of the vehicle and having searched for it for
over half an hour, he violated the defendants’ Fourth
Amendment rights when, without a reasonable suspicion that
the occupants posed a danger to him, he and several other
officers surrounded them, with guns drawn, forced them out of
the car and onto their knees, and handcuffed them and frisked
Jackson. This was outside the scope of the “traffic stop” he
should have conducted, and the evidence found thereafter
should be suppressed.

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