In United States v. Paul Johnson, Jr., No. 16-15690 (Apr. 16, 2019), the en banc Court -- by a vote of 7 to 5 -- upheld the constitutionality of the seizure of a single round of ammunition from the defendant's pocket during a Terry frisk.
Writing for the majority, Judge William Pryor (joined by Judges Ed Carnes, Tjofalt, Marcus, Newsom, Branch, and Grant), held that the seizure was permissible under the totality of the particular facts and circumstances of the case because removing it was reasonably related to officer safety. The Court empashzed that it was 4am, officers had received report of a burglary in a high-crime area, the defendant matched the description of the burglar, the scene was unsecure, and officers reasonably believed that a matching firearm was nearby. It did not matter that the defendant was handcuffed, since "handcuffs do not always work." Becaues the Court found its decision controlled by Terry, it rejected the defendant's arguments that Terry was contrary to the original meaning of the Fourth Amendment and should therefore be applied narrowly.
Judge Newsom concurred, opining that he would prefer to adopt a per se rule that an officer is always entitled to seize a bullet during a Terry frisk.
Judge Branch, joined by Judge Grant, concurred, clarifying that the totality of the circumstances approach applies only when determining whether to stop and frisk the person at the outset. Similar to Judge Newsome, they believed that, if the officer conducting the frisk feels what he reasonably believes to be a weapon, then the officer may seize it under any and all circumstances.
Judge Jordan dissented, criticizing the majority (as well as the concurrences and the government) for failing to meaningfully address the defendant's originalist argument for limiting the reach of Terry. He explained that, in an earlier opinion, Justice Scalia had determined that Terry was incompatible with the original meaning of the Fourth Amendment, and scholarship supports that view. And although Terry is binding precedent, it authorized the seizure of "weapons" alone, and Judge Jordan believed that the majority was expanding Terry to permit the seizure of a stand-alone bullet. His opinion accuses the majority of selectively applying originalism and exempting Terry from originalism even though other Fourth Amendment doctrines are informed by it.
Judge Rosenbaum dissented, interpreting the majority as necessarily and implicitly holding that ammunition may always be seized during a Terry frisk. She expressly urged the majority to insert a single sentence disavowing that necessary implication of its ruling, but the majority refused. She criticized that per se rule as a matter of procedure because the government disavowed that rule and the court did not direct the parties to brief it.
Judge Jill Pryor (joined by Judges Wilson, Martin, and Jordan) dissented, opining that the seizure of the ammuntion was unlawful because no reasonable officer could have believed that the bullet posed a threat under the particular facts of the case. Multiple officers had drawn their guns, handcuffed the defendant, and placed him on the ground; there were no reports or signs of a firearm; there were no other people present; and the defendant complied with all demands. Like Judge Rosenbaum, she opined that the majority opinion effectively creates a categorical rule authorizing the seizure of a bullet under Terry. And she opined that the majority opinion impermissibly permits Terry to be used for evidence gathering.