U.S. v. Johnson (921 F.3d 991, 2019)

NEWSOM, Circuit Judge, filed a concurring opinion.

BRANCH, Circuit Judge, filed a concurring opinion, in which GRANT, Circuit Judge, joined.

JORDAN, Circuit Judge, filed a dissenting opinion.

ROSENBAUM, Circuit Judge, filed a dissenting opinion.

JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which WILSON, MARTIN, and JORDAN, Circuit Judges, joined.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar's description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson , 885 F.3d 1313 (11th Cir.), reh'g en banc granted, op. vacated , 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson's motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.

I. BACKGROUND

We review the facts adduced at the evidentiary hearings because they are critical to our resolution of this case. Dwight Williams, a police officer for the City of Opa-Locka, Florida, sat alone in his patrol car when a call came over his radio shortly after 4:00 a.m. on June 14, 2015. The call reported a burglary in progress at a nearby multi-family duplex and described the burglar as a black male wearing a white shirt. Officer Williams and another officer responded to the call. Officer Williams knew from experience that responding to a burglary can be dangerous because burglars are often armed.

The officers arrived at the duplex and started to search for the suspected burglar. Officer Williams saw Paul Johnson, a black male wearing a white shirt standing near a fence in a dark alley at the back of the duplex. The officers asked Johnson to come toward them where they could "see him a little better." Johnson complied, and as he walked toward them, another officer arrived on the scene. The officers ordered Johnson to lie on the ground and handcuffed him. Officer Williams then began frisking Johnson.

While patting down Johnson's pocket, Officer Williams felt something nylon covering "a small, round, hard object" that he immediately recognized as ammunition. He reached into Johnson's pocket and removed the round of ammunition and an empty nylon holster. The round belonged to a .380 caliber gun. Officer Williams was concerned; as he later testified, "the round that was in [Johnson's] pocket and the holster led [him] to believe that there [wa]s a weapon that [the] round goes to and something goes into that holster." Based on his experience that burglaries often involve more than one perpetrator, he was also concerned that there was "another person in an apartment [who] m[ight] come out with something."

As Officer Williams searched the area for a gun, Johnson told the other officers that he had been trying to wake up his girlfriend, who lived at the duplex, by knocking loudly on her door. Johnson suggested that someone might have thought he was trying to break in. The officers tried to confirm Johnson's story, but his girlfriend would not answer their knock at her door.

Meanwhile, Officer Williams found a hole in the fence close to where Johnson had been standing. Knowing that suspects "throw[ ]" away weapons "a lot in Opa-Locka" when they encounter the police, Officer Williams drove around the fence to see if a gun had been tossed on the other side. Sure enough, he found two pistols, one .380 caliber and the other .40 caliber, less than a foot from where the officers had first seen Johnson. Officer Williams checked the serial numbers on the pistols and determined that both had been reported as stolen.

Johnson's girlfriend eventually opened her door for the officers. She confirmed that Johnson lived at the duplex with her and that he was trying to enter their home. The officers then arrested Johnson.

The officers took Johnson to the police station, where he waived his rights to remain silent and to counsel, see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Johnson confessed that he was holding the pistols for his brother and cousin, even though he had previously been convicted of a felony. A grand jury later indicted Johnson for being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1).

Johnson moved to suppress the ammunition, the holster, and the pistols, along with any statements resulting from the frisk. Johnson argued that Officer Williams violated the Fourth Amendment by frisking him and by seizing the ammunition and holster. A magistrate judge held two evidentiary hearings on the motion.

The officers who detained Johnson testified that Opa-Locka is a "high-crime area" that receives a "high volume of calls" involving "bodily harm done to others" and the use of firearms "in [multiple] aspects of the crimes from burglaries to robberies to home invasions." The officers testified that, in their experience, burglaries in Opa-Locka often involve more than one perpetrator. According to Officer Williams, a reported burglary presents a dangerous situation for the officers because, "when [the officers] arrive to the scene, [they] never know where the potential [suspect] may be, ... never know what [a suspect] has, [and] never know if [they] have any lighting to see the potential [suspect]." Officer Williams testified that the officers detained Johnson "because of the nature of the call and the current conditions" at the scene and to "make sure that no one else was on the premise with him." After the hearings, the magistrate judge issued a report and recommendation concluding that Officer Williams did not violate the Fourth Amendment by frisking Johnson and removing the ammunition and holster from his pocket.

The district court adopted the magistrate judge's report and recommendation and denied Johnson's motion to suppress. The district court ruled that the frisk was constitutional at its inception because "Officer Williams had reasonable suspicion to believe that his safety or the safety of others was in danger." And it ruled that the removal of the ammunition and holster "was a justified continuation of the initial frisk." The district court reasoned that "[a]n officer's seizure of ammunition following a lawful frisk when investigating a possible violent crime, particularly when confronted with an unsecure scene, is sufficiently connected to officer safety not to run afoul of the Fourth Amendment." Johnson pleaded guilty but reserved his right to appeal the denial of his motion to suppress.

A panel of this Court reversed. Johnson , 885 F.3d at 1324. The panel agreed that the frisk was constitutional at its inception because, "[c]onsidering the totality of the facts, ... Officer Williams reasonably believed that his safety, or the safety of his fellow officers, was at risk." Id. at 1322. But the panel concluded that the removal of the ammunition and holster from Johnson's pocket violated the Fourth Amendment. Id. at 1322-24. It held "the presence of a single round of ammunition-without facts supporting the presence, or reasonable expectation of the presence, of a firearm-was insufficient to justify the seizure of the bullet and the holster." Id. at 1323-24.

We vacated the panel's opinion and ordered rehearing en banc. We instructed the parties to address one issue: whether Officer Williams was entitled, when he felt a round of ammunition in Johnson's pocket during a Terry frisk, to seize the ammunition and the holster.

II. STANDARDS OF REVIEW

We review the denial of a motion to suppress under a mixed standard of review. United States v. Clay , 483 F.3d 739, 743 (11th Cir. 2007). We review the district court's findings of fact for clear error and review the application of law to the facts de novo . United States v. Matchett , 802 F.3d 1185, 1191 (11th Cir. 2015). We view the evidence in the light most favorable to the government, as "the party that prevailed in the district court." Id. (citation and quotation marks omitted).

III. DISCUSSION

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. "[R]easonableness is always the touchstone of Fourth Amendment analysis," Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 2186, 195 L.Ed.2d 560 (2016), because "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures," Terry , 392 U.S. at 9, 88 S.Ct. 1868 (quoting Elkins v. United States , 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ).

When an officer reasonably believes that a suspect threatens his safety or the safety of others, he may search the suspect and seize concealed objects that he reasonably believes may be weapons or other instruments of assault. See Terry , 392 U.S. at 27, 29, 88 S.Ct. 1868. To frisk a suspect, an officer "conduct[s] a carefully limited search of the outer clothing of [the suspect] ... to discover weapons which might be used to assault him." Id. at 30, 88 S.Ct. 1868. And if an officer "feels a concealed object that he reasonably believes may be a weapon," he may continue the search beyond the outer clothing "by searching [the suspect's] pocket" and removing the concealed object. Clay , 483 F.3d at 743-44.

"The sole justification of the search [of a suspect] is the protection of the police officer and others nearby," Terry , 392 U.S. at 29, 88 S.Ct. 1868, so a frisk must remain "reasonably related in scope to the circumstances which justified the [frisk] in the first place," id. at 20, 88 S.Ct. 1868. A frisk "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer" does not exceed its permissible scope. Id. at 29, 88 S.Ct. 1868.

When we consider "the limitations which the Fourth Amendment places upon a protective seizure and search for weapons[,] ... [we consider] the concrete factual circumstances of [the] individual case[ ]." Id. We ask "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. 1868. In this inquiry, "the totality of the circumstances-the whole picture-must be taken into account." United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "[This] process does not deal with hard certainties, but with probabilities." Id. at 418, 101 S.Ct. 690. Circumstances that we consider include the time of day, the location of the scene, the lighting at the scene, the number of officers, and the nature of the alleged crime. See United States v. Griffin , 696 F.3d 1354, 1359-60 (11th Cir. 2012) ; see, e.g. , United States v. Moore , 817 F.2d 1105, 1108 (4th Cir. 1987) ("The hour was late, the street was dark, the officer was alone, and the suspected crime was a burglary, a felony that often involves the use of weapons."). We must assess the totality of the circumstances, "not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Cortez , 449 U.S. at 418, 101 S.Ct. 690.

Consider the "concrete factual circumstances" that Officer Williams encountered. When Officer Williams received the call about a burglary in progress at 4:00 a.m., he was patrolling a "high-crime area" that receives a "high volume of calls" involving "bodily harm done to others" by guns. At the scene, Officer Williams saw Johnson, who matched the burglar's description, standing in a dark alley. And the scene was not yet secure. See Griffin , 696 F.3d at 1359 (taking into account that an officer "had not finished investigating the alleged attempted theft"). Officer Williams knew both that burglars in Opa-Locka were often armed and that they often worked with other perpetrators. When Officer Williams immediately recognized the ammunition in Johnson's pocket during the frisk, he "neutralize[d] the threat of physical harm" by removing the ammunition from Johnson's pocket. Terry , 392 U.S. at 24, 88 S.Ct. 1868.

As an essential part of a lethal weapon, Johnson's ammunition threatened the safety of Officer Williams and others in this circumstance. Although Johnson argues that his ammunition, by itself, posed no danger to the safety of Officer Williams or others, his argument fails to appreciate the grave injury that could have been caused by his ammunition if it had been loaded into a gun. Johnson compares ammunition to "a pebble, marble, coin, gemstone, ball bearing, or rock of crack cocaine." But even Johnson acknowledges a crucial difference between those other objects and a round of live ammunition: the round of ammunition is designed to become a deadly projectile. Ammunition is not a gun, but it is an integral part of what makes a gun lethal.

Examining Johnson's ammunition also could have assisted Officer Williams's search for a .380 caliber gun that he had good reason to believe was in the vicinity of the unsecure scene of a reported burglary in a high-crime area late at night. When Officer Williams discovered ammunition in Johnson's pocket, he had reason to believe a gun was in the vicinity because "[c]ommon sense and logic dictate that a bullet is often associated with a gun." People v. Colyar , 374 Ill.Dec. 880, 996 N.E.2d 575, 585 (Ill. 2013). And Officer Williams's removal of the ammunition could have informed him of what caliber or type of gun might be nearby. True, he could not use the frisk to gather evidence because a frisk must remain "[ ]related to the sole justification of the search under Terry : the protection of the police officer and others nearby." Minnesota v. Dickerson , 508 U.S. 366, 378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (alterations adopted) (citation and quotation marks omitted). But seizing the ammunition in Johnson's pocket did not "amount[ ] to the sort of evidentiary search that Terry expressly refused to authorize"; in this circumstance, it instead amounted to the sort of protective search that Terry permits because Officer Williams had to find any gun to secure the scene and protect himself and others. Id. We reject Judge Jill Pryor's suggestion that a safety measure within the scope of Terry 's rationale becomes a " 'condemned' evidentiary search[ ]" whenever it also provides the officers with new information. Jill Pryor Dissenting Op. at 1031 (quoting Dickerson , 508 U.S. at 378, 113 S.Ct. 2130 ).

That an officer may seize ammunition when it threatens the safety of officers and others has long been the settled precedent in several jurisdictions. For example, in United States v. Ward , the Eighth Circuit ruled that an officer who believed that cylindrical objects in a suspect's pocket were shotgun shells "was justified in reaching into the pocket to retrieve them." 23 F.3d 1303, 1306 (8th Cir. 1994). In Scott v. State , the Supreme Court of Nevada ruled that, after seizing a gun, an officer may remove ammunition from a suspect's pocket because "[i]t is reasonable for an officer, as a precautionary measure, to retrieve and separate from a suspect during the course of a Terry stop and frisk, either weapons or ammunition or both." 110 Nev. 622, 877 P.2d 503, 509 (1994). In State v. Smith , the Supreme Court of Arizona held that an officer reasonably seized "the contents of Smith's pockets which were bulging with shotgun ammunition." 136 Ariz. 273, 665 P.2d 995, 998 (1983) (en banc). And in Colyar , the Supreme Court of Illinois ruled that an officer who saw ammunition in a car "could reasonably suspect the presence of a gun, thus implicating officer safety," and could seize the ammunition. 374 Ill.Dec. 880, 996 N.E.2d at 585, 587. See also State v. Moton , 733 S.W.2d 449, 451 (Mo. Ct. App. 1986) (holding that officer's seizure of 13 rounds of ammunition during a frisk was lawful); People v. Lewis , 123 A.D.2d 716, 507 N.Y.S.2d 80, 81 (1986) (holding that officer responding to a call about armed robbery was entitled to seize ammunition and a gun from a suspect who was driving a car that matched the description of the robber's car). Indeed, we are aware of no precedential opinion to the contrary in any jurisdiction.

Judge Jill Pryor suggests that "a couple of" federal-court decisions "cut against" our holding, Jill Pryor Dissenting Op. at 1029, but we are not persuaded. In United States v. Miles , the Ninth Circuit held that an officer exceeded Terry 's limits by shaking a small box of bullets in a suspect's pocket because the contents of the box were not immediately apparent to the officer. 247 F.3d 1009, 1015 (9th Cir. 2001). By contrast, Officer Williams testified that, when he felt the object in Johnson's pocket, he "immediately thought it was ammunition." And in United States v. Lemons , the Eastern District of Wisconsin ruled that "ammunition alone cannot be considered contraband"-an issue not presented by this appeal. 153 F.Supp.2d 948, 960 (E.D. Wis. 2001) ; see also id. at 957 (finding that the officer who conducted the frisk "did not immediately recognize the items as bullets"). Apart from describing ammunition as a "nonweapon[ ]," the district court did not consider whether or in what circumstances an officer might be justified in seizing it as a safety measure. Id. at 959. Nor can we overlook that the opinion of a district court is not precedential. Camreta v. Greene , 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) ("A decision of a federal district court judge is not binding precedent ...."

(citation and internal quotation marks omitted)); accord Bryan A. Garner al., The Law of Judicial Precedent § 29, at 255 (2016).

Johnson argues that, because the scope of a frisk is limited to a search for weapons and ammunition is not a weapon, Officer Williams was not entitled to remove the ammunition from his pocket. But Johnson reads Terry as if the central question it posed were whether a given object qualifies as a "weapon" in the abstract and not whether removing and securing the object is reasonably related to "the protection of the police officer and others nearby," 392 U.S. at 29, 88 S.Ct. 1868. In Terry , the Supreme Court contemplated that an officer could, of course, remove "guns, knives, [and] clubs," but it never limited a frisk to those specified weapons. Id. Instead of creating a laundry list of particular objects that an officer may remove during a frisk, the Supreme Court explained that "[t]hese limitations will have to be developed in the concrete factual circumstances of individual cases." Id. And when applying Terry in individual cases, we have ruled that officers are entitled to seize a variety of items that are not traditional weapons. See, e.g. , Clay , 483 F.3d at 743 (holding that an officer lawfully seized a "long, thin object," which turned out to be the empty barrel of a ballpoint pen, because he thought it "might be a screwdriver or something similar that could be used as a weapon"). After all, Terry explained that an officer can also remove "other hidden instruments for the assault of the police officer." 392 U.S. at 29, 88 S.Ct. 1868 ; see also Sibron v. New York , 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ( Terry 's companion case also ruling that an officer may remove "concealed objects which might be used as instruments of assault").

In considering a frisk's proper scope, we cannot isolate Terry 's references to "weapons" from the "sole justification" for the frisk: "the protection of the police officer and others nearby." 392 U.S. at 29, 88 S.Ct. 1868. To be sure, the scope of a frisk must be "carefully limited" to serve that justification, id. at 30, 88 S.Ct. 1868, but it must not be so limited that officers cannot take reasonable actions in furtherance of their own safety and that of others. As the Terry Court made clear, we cannot "deny the officer the power to take necessary measures ... to neutralize the threat of physical harm." Id. at 24, 88 S.Ct. 1868. In short, during a Terry frisk, an officer may remove ammunition from a suspect when the removal is reasonably related to the protection of the officers and others nearby. See id. at 19-20, 88 S.Ct. 1868.

Johnson argues that "the way to defuse the potential danger [posed by ammunition] is to locate and seize the firearm that might be present," but we cannot, with hindsight, dictate best practices for police officers. "A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished." United States v. Sharpe , 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Instead of imagining other ways to defuse the danger posed by ammunition, we assess only whether an officer acted reasonably in his circumstance. See id.

Officer Williams acted reasonably when he seized the ammunition and holster in Johnson's pocket. He was entitled to "tak[e] steps to assure" himself that the ammunition in Johnson's pocket would not be loaded into "a weapon that could ... fatally be used against [him]." Maryland v. Buie , 494 U.S. 325, 333, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (discussing the protection concerns that animate a Terry frisk). When Officer Williams seized the ammunition and empty holster, he had every reason to expect that a matching gun was nearby. Officer Williams even testified that the ammunition in Johnson's pocket "led [him] to believe that there [wa]s a weapon that [the] round goes to and something goes into that holster." And he explained that suspects "throw[ ]" away weapons "a lot in Opa-Locka" when they encounter the police. When Officer Williams found only a single round of ammunition in Johnson's pocket, he was left to fear where other ammunition may be, especially a round already loaded into a gun's chamber.

That Johnson was handcuffed when he was frisked did not eliminate the danger posed by the ammunition. The Supreme Court has rejected as "mistaken" the argument that officers cannot reasonably fear for their safety when a suspect "was effectively under [the officers'] control during the investigative stop and could not get access to any weapons that might have been located [nearby]." Michigan v. Long , 463 U.S. 1032, 1051, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Handcuffs do not always work, and suspects have been known to reach for weapons even when handcuffed. See United States v. Sanders , 994 F.2d 200, 209-10 (5th Cir. 1993) (rejecting the argument "that, by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will ... do them harm").

When Johnson was stopped and frisked, the officers had not found a gun on the scene, did not know how many or what kind of guns might be on the scene, and did not know whether others, who were not handcuffed, participated in the burglary and were still lurking in the area. But the officers did know, based on their experience, that burglaries in Opa-Locka often involve guns and often involve more than one person. "In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves ...." Terry , 392 U.S. at 24, 88 S.Ct. 1868.

Although Johnson argues that Terry is inconsistent with the original meaning of the Fourth Amendment and that we should apply it narrowly to "limit[ ] the damage," we must apply Supreme Court precedent neither narrowly nor liberally-only faithfully. Johnson appeals to Justice Scalia's expressed doubts about Terry , see Dickerson , 508 U.S. at 382, 113 S.Ct. 2130 (Scalia, J., concurring) (opining that Terry did not discuss "the original state of the law" and instead represents "the original-meaning-is-irrelevant, good-policy-is-constitutional-law school of jurisprudence"), though Justice Scalia also recognized that a frisk might have been "considered permissible" when the Fourteenth Amendment was adopted or might otherwise be considered "reasonable" now, id. But when "a precedent of [the Supreme] Court has direct application," we must follow it. Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).

To be sure, in several areas, the Supreme Court has considered the original meaning of the Fourth Amendment. See, e.g. , Virginia v. Moore , 553 U.S. 164, 168, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (original understanding of an officer's authority to arrest a suspect); United States v. Ramsey , 431 U.S. 606, 616, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) (original understanding of border searches). And we have followed its approach in those areas. See, e.g. , United States v. Touset , 890 F.3d 1227, 1232 (11th Cir. 2018) (quoting Ramsey , 431 U.S. at 616-17, 97 S.Ct. 1972 ); United States v. Phillips , 834 F.3d 1176, 1179-80 (11th Cir. 2016) (quoting Moore , 553 U.S. at 168, 128 S.Ct. 1598 ). We also have determined the original meaning of other constitutional provisions to resolve questions of first impression. See, e.g. , United States v. Campbell , 743 F.3d 802, 810-11 (11th Cir. 2014) (original understanding of "Felonies committed on the high Seas"); United States v. Bellaizac-Hurtado , 700 F.3d 1245, 1249-51, 1254 (11th Cir. 2012) (original understanding of "Offences against the Law of Nations"). But Terry -the precedent that directly controls-explained that we must consider the need to protect officer safety when evaluating the scope of a frisk without mention of original meaning. See Terry , 392 U.S. at 29, 88 S.Ct. 1868.

We cannot use originalism as a makeweight when applying that analytic framework. Nor can we promise that Johnson would like the result if we did have the authority to approximate originalist outcomes by selectively trimming binding precedent around the edges. See, e.g. , Collins v. Virginia , --- U.S. ----, 138 S.Ct. 1663, 1676-77, 201 L.Ed.2d 9 (2018) (Thomas, J., concurring) (explaining that the law during the Founding period did not exclude illegally seized evidence and indeed "sometimes reflected the inverse of the exclusionary rule" because "that someone turned out to be guilty could justify an illegal seizure") (citing Gelston v. Hoyt , 3 Wheat. 246, 310, 16 U.S. 246, 4 L.Ed. 381 (1818) (Story, J.); 2 William Hawkins, A Treatise of the Pleas of the Crown 77 (1721)); see also Janus v. AFSCME , --- U.S. ----, 138 S.Ct. 2448, 2470, 201 L.Ed.2d 924 (2018) (rejecting the "halfway originalism" of parties who appeal to the original meaning "only when it suits them"). And we cannot use a halfway theory of judicial precedent to cut back on Terry while faithfully adhering to the exclusionary rule. As an "inferior" court, U.S. Const. Art. III, § 1, we have no such authority: "The only Court that can properly cut back on Supreme Court decisions is the Supreme Court itself." Prison Legal News v. Sec'y, Fla. Dep't of Corr. , 890 F.3d 954, 966 (11th Cir. 2018) (emphasis added).

Judges Rosenbaum and Jill Pryor, in dissent, level an attack against an opinion that we have not issued. According to Judge Rosenbaum's dissent, "we hold that any ammunition may always be seized during a frisk," Rosenbaum Dissenting Op. at 1012 (emphasis added), and so transform the totality-of-the-circumstances test into a "brand new rule," id. at 1022. See also Jill Pryor Dissenting Op. at 1029-31. But we cannot decide whether Officer Williams was entitled to seize an object for his protection without considering the nature of that object. By discussing facts about ammunition, we do not create a categorical rule that ammunition may always be seized. Indeed, our concurring colleagues understand that we have not done so and write separately to explain that they prefer that we would adopt such a categorical rule. Newsom Concurring Op. at 1004; Branch Concurring Op. at 1009. And contrary to Judge Rosenbaum's accusation, we create no alternative holding, "stealth" or otherwise. Rosenbaum Dissenting Op. at 1019; see Garner et al., The Law of Judicial Precedent § 10, at 128-29 ("[I]t's improper for a later court to infer an alternative holding or rationale where none is sufficiently expressed in the precedent.").

Judge Rosenbaum also accuses us of circumventing the adversarial process by addressing an issue "that we did not ask the parties to address, that neither party briefed, and that the government expressly declined to adopt at oral argument," Rosenbaum Dissenting Op. at 1012, but even a cursory review of the en banc issue, briefs, and oral argument proves this assertion wrong. We asked the parties to address one issue: "When he felt a round of ammunition in Paul Johnson Jr.'s pocket during a Terry frisk, was Officer Dwight Williams entitled to seize the ammunition and a nylon holster from Johnson's pocket?" In his brief, Johnson argued that Officer Williams was not entitled to seize the ammunition from his pocket because "the bullet in this particular case posed no conceivable threat to officer safety." The government argued in its brief that "Officer Williams was justified in retrieving the bullet because a reasonable officer under the circumstances could conclude that the bullet [wa]s an instrument of assault that could pose a danger to himself and other[s]." After oral argument, we now answer that question in the affirmative. Notably, although she styles her opinion as a "dissent," Judge Rosenbaum refuses to answer the one question-she deems it "non-en banc worthy"-that a majority of this Court voted to decide en banc. Rosenbaum Dissenting Op. at 1023. So, unlike Judge Rosenbaum, we answer the very question the parties briefed and argued-nothing more and nothing less.

"The language of a judicial decision must be interpreted with reference to the circumstances of the particular case and the question under consideration." Garner et al., The Law of Judicial Precedent § 6, at 80. "As binding authority, [a] judicial decision[ ] is inherently limited to the facts of the case then before the court and the questions presented to the court in the light of those facts." New Port Largo, Inc. v. Monroe Cty. , 985 F.2d 1488, 1499 (11th Cir. 1993) (Edmondson, J., concurring in the judgment). As Chief Justice John Marshall explained long ago, "[i]t is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) ; see also Armour & Co. v. Wantock , 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944) ("[W]ords of our opinions are to be read in the light of the facts of the case under discussion.").

To be sure, the reasoning of our decision generates a principle of law, the application of which extends beyond the factual circumstances of this appeal. That result does not arise from an abandonment of the fact-bound inquiry prescribed by Terry , but instead reflects how a totality-of-the-circumstances test works when reviewing a stop and frisk. Correctly understood, the output of a totality-of-the-circumstances inquiry is necessarily a conditional legal principle: by deciding that particular circumstances mandate a particular result, a court adopts a principle that if materially similar circumstances obtain, the same result must follow. In other words, there is no either-or choice between formulating an abstract principle of law and applying a totality-of-the-circumstances test. Applying the latter yields the former, which is all that we have done to resolve this appeal. We have adopted the principle that if an officer conducts a lawful Terry stop and frisk in materially similar circumstances, then that officer is entitled to seize ammunition from the suspect.

We have neither jettisoned Terry 's totality-of-the-circumstances approach in favor of a categorical rule nor resolved a question that we did not ask the parties to address. In resolving the question we posed, we necessarily adopt a principle with potential application to future cases. But the principle is not universally applicable because it is tethered to the concrete factual circumstances of Johnson's stop and frisk. And we cannot indulge our dissenting colleague's call for an explanation of how "courts will be able to reach any other conclusions in cases involving any ammunition, regardless of any other circumstances," Rosenbaum Dissenting Op. at 1016, because "[w]e are not in the business of issuing advisory opinions ... that merely opine on 'what the law would be upon a hypothetical state of facts.' " Gagliardi v. TJCV Land Tr. , 889 F.3d 728, 733 (11th Cir. 2018) (quoting Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) ).

Officer Williams's frisk remained "reasonably related in scope to the circumstances which justified the [frisk] in the first place." Terry , 392 U.S. at 20, 88 S.Ct. 1868. Officer Williams encountered an unsecure scene, late at night, in a high-crime area, while investigating a reported burglary. Officer Williams's removal of the ammunition and holster was reasonably related to the protection of the officers and others. We hold that Officer Williams did not violate Johnson's Fourth Amendment rights by removing the ammunition and holster from his pocket during the frisk.

IV. CONCLUSION

We AFFIRM Johnson's judgment of conviction and sentence.

NEWSOM, Circuit Judge, concurring:

I agree that, in the "circumstances" that he confronted, the Fourth Amendment permitted Officer Williams to seize the bullet that he felt in Johnson's pocket, see Majority Op. at 997-98, and I therefore join the Court's opinion. I write separately to clarify that if it were up to me, rather than tying that judgment to the particular situation faced by the particular officer in this particular case, I would simply hold, as a prophylactic matter, that if a policeman discovers a bullet during the course of an otherwise-lawful Terry stop, he can seize it as a means of "neutraliz[ing] the threat" to himself and others. Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

My concern with a fact-bound "totality-of-the-circumstances" approach is simply stated: It can leave police officers guessing-and thus potentially hesitant, and thus potentially vulnerable. The majority enumerates a variety of factors that it says justified Officer Williams's determination that seizing the bullet was appropriate here: (1) it was 4:00 a.m.; (2) he was patrolling a "high-crime area"; (3) he had answered a call about a potentially violent residential burglary; (4) he encountered Johnson "in a dark alley"; and (5) "the scene was not yet secure." Majority Op. at 998. That all seems perfectly sensible to me. And more than just sensible, given my understanding of Terry it also seems perfectly correct: In the light of the particular situation that he faced-or the dark of it, as the case may be-Officer Williams reasonably concluded that there was a sufficient threat to his (and others') safety to warrant confiscating the bullet.

In fairness, though, the dissent also has a totality-of-the-circumstances story to tell. It highlights the following "combination of facts" known to Officer Williams before he frisked Johnson: "(1) there had been no report or indication of a weapon or an accomplice at the scene; (2) at least two other armed officers had arrived at the scene; (3) Mr. Johnson had immediately, peacefully, and at gunpoint complied with the officers' commands; and (4) the officers had placed Mr. Johnson on the ground and handcuffed him." J. Pryor Dissenting Op. at 1028 (footnote call omitted). Speaking for myself, I find the dissent's laundry list somewhat less compelling than the majority's-it seems clear to me, for instance, that a handcuffed suspect can still threaten officer safety, see, e.g ., United States v. Sanders , 994 F.2d 200, 209-10 (5th Cir. 1993) -but I certainly can't dismiss the dissent's assessment of the situation as ridiculous or groundless.

So even in this case-and even now, more than three years after the fact, from the cozy comfort of our respective judicial chambers-we're having a healthy, good-faith debate about whether the "totality of the circumstances" warranted Officer Williams's seizure of the bullet. And although I find that the balance tips in Officer Williams's-and thus the majority's-favor, there are, I must admit, decent arguments on both sides. What I worry about is the next case-and the one after that, and the one after that-which will inevitably involve a different mix of variables. Let's take, for instance, "time of day," which the majority emphasizes-Officer Williams responded to the call here in the wee hours, around 4:00 a.m. Majority Op. at 997-98. What if, instead, he had encountered Johnson in broad daylight in the middle of the afternoon? Same result? How about "location of the scene"? Id . Opa-Locka is apparently a pretty tough neighborhood-a "high-crime area." Id . But what if we head 10 miles due south, straight down FL-953, to Coral Gables? (For our Alabama readers, think Mountain Brook or Vestavia Hills; for the Georgians, Milton or Sandy Springs.) Seizure still permissible? Now consider a few of the factors that the dissent brings to bear. By the time the bullet was seized, there were a total of three armed officers on the scene. See J. Pryor Dissenting Op. at 1026-27. But what if an officer confronts a suspect alone? Still a Fourth Amendment violation? The dissent also stresses that Johnson was handcuffed-and thus essentially incapable of retrieving and deploying the stashed ammo. Id . Different result if the suspect isn't yet securely restrained at the time the officer feels the bullet?

You get my point. Even we judges-with the luxury of time for study and reflection-can't say for certain how we would crunch those factors in future cases. Where in the world does that leave responding officers? Policemen and women are tasked with the often-unenviable task of protecting the public safety, and in so doing they must make split-second judgments about how best to secure a scene or situation. I would rather not require them to work their way through a multi-factor Fourth Amendment balancing analysis in order to determine whether the decision to confiscate a bullet-a bullet!-will stand up to after-the-fact judicial second-guessing. I would prefer-and I believe Supreme Court precedent supports-a clear rule authorizing the seizure. The Court "repeatedly has acknowledged," in all manner of cases, "the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances." Oliver v. United States , 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Such totality-of-the-circumstances balancing, the Court has stressed, "not only makes it difficult for the policeman to discern the scope of his authority"-the thrust of my critique here-but "also creates a danger that constitutional rights will be arbitrarily and inequitably enforced." Id . at 181-82, 104 S.Ct. 1735.

Now I recognize, of course, that in Terry the Supreme Court excused itself from "develop[ing] at length" the Fourth Amendment rules that govern the sorts of searches at issue here, saying that they could instead be worked out in "the concrete factual circumstances of individual cases." 392 U.S. at 29, 88 S.Ct. 1868. The Court, though, didn't leave everything in a state of totality-of-the-circumstances limbo. Instead, in the very same paragraph, the Court both clarified an overarching principle-namely, that protective searches must be justified by a concern for "the protection of the police officer and others nearby"-and then identified an illustrative list of items whose seizure would, as a per se matter, be deemed to serve that purpose: "guns, knives, clubs, [and] other hidden instruments for the assault of the police officer." Id . To be clear, no one thinks that when an officer conducting a Terry frisk identifies a "gun" he has to pause to brainstorm whether the particular circumstances in which he finds himself warrant a seizure; he can simply take it. Same for a "knife" or a "club"-take it. The question for me, therefore-since I'm the one advocating a clear rule to guide officer conduct-is whether a bullet fairly fits within Terry 's catch-all category, "other hidden instruments for the assault of the police officer." I think it does. An "instrument" is an "object, device, or apparatus designed or used for a particular purpose or task." Oxford English Dictionary (online ed.) Simply as a matter of plain language, it doesn't seem to me too far a stretch to conclude that a bullet qualifies as an "object" that can be "used" to assault a police officer. And that seems to me all the more true given Terry 's unmistakable focus on officer safety.

So in the next "bullet case," rather than asking-or worse, requiring the responding officer to ask-whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.

BRANCH, Circuit Judge, joined by GRANT, Circuit Judge, concurring:

I join the majority opinion in full. The Fourth Amendment certainly authorized Officer Williams to seize the ammunition from Paul Johnson, Jr.'s pocket. I agree with Judge Newsom's concurrence insofar as it recognizes that a bullet falls within the list of items that Terry authorized an officer to seize during a lawful frisk-"guns, knives, clubs, [and] other hidden instruments for the assault of the police officer." Terry v. Ohio , 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). I write separately to clarify two points: (1) the totality of the circumstances analysis in Terry applies only when the officer is determining whether (a) to stop and (b) then to frisk the detained person; and (2) if the officer conducting the frisk complies with the scope of the search permitted by Terry and feels what the officer reasonably believes is a bullet, the officer may in all circumstances seize it.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. The Fourth Amendment prohibits only unreasonable searches and seizures. Terry , 392 U.S. at 9, 88 S.Ct. 1868 (quoting Elkins v. United States , 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ). An officer may stop an individual for questioning upon reasonable suspicion that criminal activity "may be afoot." Id. at 30, 88 S.Ct. 1868. The reasonable suspicion inquiry which justifies a Terry stop must be assessed by taking into account "the totality of the circumstances-the whole picture." United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Once an officer makes a Terry stop, if the officer also believes, based on the surrounding circumstances, that the individual "is armed and presently dangerous to the officer or to others," the officer may conduct a search of the suspect's outer clothing "to discover weapons which might be used to assault him," Terry , 392 U.S. at 30, 88 S.Ct. 1868.

The search must be limited in scope based on the sole justification of the search-the protection of the police officer and others nearby-and therefore, must be "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id. at 29, 88 S.Ct. 1868. If, during the pat down, the officer "feels a concealed object that he reasonably believes may be a weapon," he may extend the search by reaching into the suspect's pocket and removing the object. United States v. Clay , 483 F.3d 739, 743-44 (11th Cir. 2007).

The initiation of the stop and the initiation of the pat down are the only two points in the encounter at which the officer's reasonable belief must be assessed based on the totality of the circumstances. See State v. Smith , 136 Ariz. 273, 665 P.2d 995, 998 (1983) (finding that an officer was justified in conducting a pat down based on the "circumstances," and that "the police reasonably decided to inspect [and seize] the contents of [the suspect's] pockets which were bulging with shotgun ammunition"). Once the officer is authorized to conduct the pat down, the only questions are whether the limited scope of the pat down is proper under Terry and whether, during the lawful pat down, the officer "feels a concealed object that he reasonably believes may be a weapon," Clay , 483 F.3d at 743. See United States v. Rochin , 662 F.3d 1272, 1273 (10th Cir. 2011) ("the [Fourth] Amendment's ever-present reasonableness requirement places strict limits on the scope or nature of the frisk an officer may administer"). If he does not reasonably believe the object is a weapon, he is not entitled to extend the search beyond the pat down of the suspect's outer clothing, for instance, by reaching into a pocket. Sibron v. New York , 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding that an officer who reached into a pocket and found narcotics without first detecting a weapon exceeded the bounds of a lawful Terry search). If he does reasonably believe the object is a weapon, he is entitled to extend the search by "reach[ing] for and remov[ing]" the weapon. Terry , 392 U.S. at 29-30, 88 S.Ct. 1868.

Determining whether the object the officer feels is a weapon does not depend on the totality of the circumstances but on whether the officer reasonably concludes based on feel that the object is a weapon. See Minnesota v. Dickerson , 508 U.S. 366, 376, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (explaining that "[t]he very premise of Terry ... is that officers will be able to detect the presence of weapons through the sense of touch"). Provided that the officer was justified in stopping the suspect and conducting a pat down and provided that the pat down did not exceed the "scope of a protected frisk," the "one question" is "did [the officer] act unreasonably when he removed" the object. United States v. Holmes , 385 F.3d 786, 789-91 (D.C. Cir. 2004) (concluding that an officer acted reasonably in removing a "hard, square object" from the suspect's jacket pocket that turned out to be a scale).

In the Terry frisk context, a bullet is an "instrument[ ] for the assault of the police officer," Terry , 392 U.S. at 29, 88 S.Ct. 1868, that an officer may reasonably remove pursuant to a pat down. As Judge Newsom points out, no one would question that an officer conducting a Terry frisk may always remove a gun he discovers during the search-regardless of the surrounding circumstances. See id. at 29-30, 88 S.Ct. 1868 ; see also Pennsylvania v. Mimms , 434 U.S. 106, 111-12, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (concluding that an officer who observed a bulge in a suspect's jacket was authorized to conduct a Terry pat down and seize the gun); United States v. White , 593 F.3d 1199, 1202 (11th Cir. 2010) (affirming the denial of a motion to suppress a gun found during a Terry frisk pursuant to an authorized Terry stop and frisk). The same reasoning applies to a bullet. Guns and bullets are of a piece; they go together. And one is no use without the other. In a Terry frisk context, a bullet poses substantially the same risk that a gun does-that it will be used as part of a dangerous combination to assault the officer. An officer seizing a gun does not know whether that gun is loaded, yet no one would dispute that the seizure of a gun is lawful even if it turns out that the gun is unloaded. Similarly, an officer seizing a bullet may not know in a particular instance whether there is a gun nearby or if he missed a gun in the frisk. Of course he would know that the bullet is not presently in a gun and must first be loaded into a gun but the risk remains largely the same. Therefore, an officer conducting a Terry frisk that is authorized by a reasonable belief that the suspect is armed is entitled to seize a bullet to the same extent he is entitled to seize a gun-regardless of the surrounding circumstances. It does not matter whether the frisk occurs in daylight hours or at night; nor does it matter if it occurs in high crime area or a relatively safe area of town. If an officer discovers a bullet during a frisk lawful under Terry , the officer is entitled to seize the bullet as it is an instrument of assault in all circumstances.

One of the reasons we do not look to the surrounding circumstances in cases concerning the weapons listed in Terry is that, aside from removing the object, no precaution can eliminate the danger. For instance, the Supreme Court has rejected the argument that a suspect who is effectively under the control of the officers cannot gain access to weapons located nearby. Michigan v. Long , 463 U.S. 1032, 1051, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ; see also United States v. Sanders , 994 F.2d 200, 209-10 (5th Cir. 1993) (rejecting the argument that "by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will ... do them harm."). Further, even the presence of multiple officers does not eliminate, though it may reduce, the risk that a suspect will obtain a gun and fire it at the officer.

Moreover, a bullet is an instrument of assault because its only purpose is to be used with a firearm. Like a gun, a bullet located during a Terry frisk poses an inherent risk to the safety of the officer and others nearby, and the police officer should not be required to assume such "unnecessary risks in the performance of their duties." Terry , 392 U.S. at 23, 88 S.Ct. 1868. For those reasons, having found a bullet pursuant to a Terry frisk, an officer is permitted to seize it in the same manner as he would a gun.

This is not to say that the Fourth Amendment provides no protection against the unreasonable seizure of a bullet. But those protections come at the initiation of the encounter when the officer must have reasonable suspicion of criminal activity in order to initiate the stop and a reasonable belief that the individual is armed and presently dangerous in order to conduct the pat down. Id. at 24, 30, 88 S.Ct. 1868. It is also not to say that the totality of the circumstances has no role in the Terry context, of course it does, but that role is limited to the initiation of the stop and frisk. After having made those determinations, an officer is authorized to remove a concealed object that he reasonably believes is a weapon or other instrument of assault based on the pat down. And because a bullet is an instrument of assault in the Terry context, it is reasonable under all circumstances for the officer to protect his safety and that of others nearby by removing the bullet.

Because I conclude that a bullet falls in to the category of "guns, knives, clubs, or other hidden instruments for the assault of the police officer," id. at 29, 88 S.Ct. 1868, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.

Cf., e.g. , Georgia v. Randolph , 547 U.S. 103, 121, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ("This is the line we draw, and we think the formalism is justified."); Atwater v. City of Lago Vista , 532 U.S. 318, 347, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ("Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made."); Dunaway v. New York , 442 U.S. 200, 213-14, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) ("A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront."); United States v. Robinson , 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ("A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.").

JORDAN, Circuit Judge, dissenting.

This appeal presents an interesting case study for originalism, a set of related theories which (broadly speaking) call for constitutional provisions to be interpreted in accord with their understanding and meaning at the time of enactment or in accord with the intent of their framers. See, e.g., McDonald v. City of Chicago , 561 U.S. 742, 813-38, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (Thomas, J., concurring in part and concurring in the judgment); Randy Barnett, The Original Meaning of the Commerce Clause , 68 U. Chi. L. Rev. 101, 105-08 (2001) ; Edwin Meese, III, Speech Before the American Bar Association on July 9, 1985, in Steven Calabresi, Originalism: A Quarter-Century of Debate 53-54 (2007); Antonin Scalia, A Matter of Interpretation 38 (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 144 (1990); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 363-73 (1977). I write separately to discuss the majority's failure to address, in any meaningful way, Mr. Johnson's originalist argument for limiting the reach of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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A quarter century ago, Justice Scalia concluded that the "frisk" aspect of Terry , 392 U.S. at 25-27, 88 S.Ct. 1868 -which allows the police to conduct pat-downs for weapons based only on reasonable suspicion-could not be justified on originalist grounds. See Minnesota v. Dickerson, 508 U.S. 366, 381, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (Scalia, J., concurring) (finding "no English authority" and "no clear support at common law" for physical searches of suspects absent probable cause). Some subsequent scholarship appears to validate Justice Scalia's view. See, e.g., Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation 40-41 (2d ed. 2014) (asserting that in America and England during the period preceding the American Revolution, "[w]arrantless searches and seizures were virtually nonexistent or at least uncontroversial," and "[o]nly one type of warrantless seizure may have been common, that is, the arrest of a suspected felon"); Heather Winter, Resurrecting the "Dead Hand" of the Common Law Rule of 1789: Why Terry v. Ohio is in Jeopardy , 42 Crim. L. Bull. 564, 565 (2006) ("The historical evidence reveals that Terry frisks did not occur at common law and would have been viewed unfavorably by the Constitution's framers."); George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment , 80 Notre Dame L. Rev. 1451, 1515 (2005) (concluding that Terry , insofar as it permits a warrantless frisk on the street without probable cause, "would have baffled the Framers").

Relying on Justice Scalia's originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson's En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry , and must therefore ignore the original understanding of the Fourth Amendment.

The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois , 444 U.S. 85, 93-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ("Nothing in Terry can be understood to allow ... any search whatever for anything but weapons."). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its "narrow scope." Dunaway v. New York , 442 U.S. 200, 210, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

There are ways to deal with a precedent whose pedigree is questionable. If Terry rests on a shaky originalist foundation, something the majority does not dispute, there is always the option of declining to broaden it-of "refus[ing] to extend it one inch beyond its previous contours." Richard Epstein, The Classical Liberal Alternative to Progressive and Conservative Constitutionalism , 77 U. Chi. L. Rev. 887, 903 (2010) (proposing a "proper" originalist response to the Supreme Court's New Deal jurisprudence). See also Bork, The Tempting of America 158-59 (arguing that even where questionable precedential decisions "cannot be overruled ... they can be confined to the subject areas they concern."); Troxel v. Granville , 530 U.S. 57, 92, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (Scalia, J., dissenting) ("While I would not now overrule those [erroneous] earlier cases ... neither would I extend the theory upon which they rested to this new context."). Why not then stop where Terry and its progeny stop, and prohibit, absent probable cause, the seizure of items which are neither weapons nor contraband?

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The majority's decision to sidestep Mr. Johnson's originalist argument is particularly perplexing given the Supreme Court's instruction that "[i]n determining whether a search or seizure is unreasonable, we begin with history," and "look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve." Virginia v. Moore , 553 U.S. 164, 168, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (emphasis added). The majority appears to believe that Terry is an exception to this interpretive approach, and focuses instead on a pragmatic balancing of individual privacy and officer safety. See Maj. Op. at 1002 (asserting that in the Terry context we "consider the need to protect officer safety" without regard to original meaning).

But this suggestion-that we consider history in some Fourth Amendment cases, and not in others-is precisely the type of "halfway originalism" that the majority purports to reject. See Maj. Op. at 1002 (quoting Janus v. AFSCME , --- U.S. ----, 138 S.Ct. 2448, 2470, 201 L.Ed.2d 924 (2018) ). And this approach is difficult to square with our consideration of history in analyzing the scope of various constitutional provisions (including the Fourth Amendment itself). See, e.g., United States v. Gecas , 120 F.3d 1419, 1435-57 (11th Cir. 1997) (en banc) (Fifth Amendment privilege against self-incrimination); Evans v. Stephens , 387 F.3d 1220, 1222-27 (11th Cir. 2004) (en banc) (President's power to "fill ... Vacancies" under Art. II,