U.S. v. Rogers
| Decision Date | 28 October 1997 |
| Docket Number | D,No. 442,442 |
| Citation | 129 F.3d 76 |
| Parties | UNITED STATES of America, Appellee, v. Shilon ROGERS, Defendant-Appellant. ocket 97-1111. |
| Court | U.S. Court of Appeals — Second Circuit |
Philip L. Weinstein, New York City (Henriette D. Hoffman, The Legal Aid Society Federal Defender Division Appeals Bureau, of counsel), for Defendant-Appellant.
Gary Stein, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Craig A. Stewart, Assistant United States Attorney, on the brief), for Appellee.
Before: JACOBS and LEVAL, Circuit Judges, and RESTANI, * Judge.
Shilon Rogers appeals from a judgment of the United States District Court for the Southern District of New York (Mukasey, J.) convicting her of possession of cocaine with intent to distribute and sentencing her to 41 months of imprisonment. Rogers makes two arguments on appeal: (1) that the district court should have suppressed cocaine found in a rolled-up paper bag removed from her coat pocket, because the officer's opening of the bag was an unreasonable search; and (2) that the district court should have granted her an additional one-level downward adjustment for acceptance of responsibility under § 3E1.1(b) of the United States Sentencing Guidelines. We affirm.
On the afternoon of November 30, 1995, Sergeant William Mason and Officers John Quinn and Edward Schoales of the New York City Police Department's 26th Precinct were traveling north on 12th Avenue above 125th Street in an unmarked car. The driver of a southbound livery cab flashed his headlights several times and looked directly at Schoales as they passed. Mason deduced (correctly) that the driver was trying to get their attention and the police car made a U-turn, pulling up behind the livery cab as it stopped.
Schoales approached the cab and asked the driver to step out. The driver explained that he had been signaling because his passengers had changed their destination more than once and he feared he was being taken to a likely spot for a robbery. Schoales then told Mason about the change of destinations (a common feature of cab robberies) and about the driver's fear. Mason, believing that he was investigating a robbery in progress, asked the two passengers to get out of the car. Shilon Rogers was one of the passengers.
As Sergeant Mason spoke to Rogers on the sidewalk, he noticed that "she was being quite evasive" and was turning away as if to hide her left side. Rogers then reached with her left hand toward the lower part of her coat. Mason directed her to stand still, grabbed the coat where he thought she was reaching, and felt something he described as "a heavier object than what [he] expected to find." Mason then grabbed the coat with both his hands and felt "a hard object and then a softer object." Mason pressed and manipulated the coat and its contents for a few seconds; he later testified that he was "fairly certain" it was drugs, but that he could not exclude the possibility that the pocket also contained a weapon. Mason summoned Schoales and instructed him to search Rogers' coat pocket. Schoales reached into the pocket, removed a rolled-up paper bag, opened it, and found inside a plastic bag containing cocaine. Rogers was then arrested.
Rogers moved to suppress the cocaine, arguing that the police had neither reasonable suspicion to justify the stop, nor probable cause to remove the paper bag from her pocket and open it without a warrant. In a thorough and well-reasoned opinion, the district court denied the motion on the ground that the stop-and-frisk was justified under the standard of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and on the ground that the removal and opening of the paper bag were justified for two independent reasons: (1) it was reasonable for Schoales to remove and open the bag because Mason had been unable to exclude the possibility that it contained a weapon, and (2) what Mason could feel in his (lawful) touching of Rogers' pocket, together with the surrounding circumstances, established probable cause to believe that the pocket contained contraband. See United States v. Rogers, No. 95-CR-1136, 1996 WL 422260 at * 4-7 (S.D.N.Y. July 29, 1996).
Shortly thereafter, Rogers proposed--and the government rejected--a conditional guilty plea that would have preserved her right to appeal the district court's denial of her motion to suppress. Rogers chose to stand trial and waived her right to a jury. After a brief bench trial, at which Rogers' counsel waived opening and closing arguments and stipulated to the several facts of the case, the district court found Rogers guilty as charged.
At the sentencing hearing, Rogers argued for a three-point reduction in her offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court was initially reluctant to grant the reduction, questioning whether a defendant who preserves the right to appeal by agreeing to a bench trial on stipulated facts is entitled to a reduction for acceptance of responsibility. As the court observed, the preservation of the right to appeal manifested a desire to avoid responsibility, not to accept it. Ultimately, the district court granted a two-point reduction for acceptance of responsibility under § 3E1.1(a) by reason of Rogers' providing information about others involved in the distribution of drugs, but denied the requested third point under § 3E1.1(b). (The district court also granted an additional two-point reduction under the "safety valve" provision of U.S.S.G. § 5C1.2.)
Rogers now concedes that the initial stop-and-frisk--and the removal of the rolled-up paper bag from her coat pocket--was lawful under the standard of Terry v. Ohio. She contends only that the act of opening the paper bag after it was taken from her pocket was unlawful. More specifically, she argues (1) that what Officer Mason felt, together with Rogers' own suspicious conduct, did not give the officers probable cause to open the paper bag and search for contraband; and (2) that the act of opening the paper bag was not justified as a protective measure under Terry because there was no reasonable basis to believe that it contained a weapon.
In Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993), the Supreme Court concluded that a police officer may seize contraband detected by sense of touch during a protective patdown search so long as the officer is acting within the bounds of Terry at the moment when probable cause arises to believe that contraband is present:
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
Id. at 375-76, 113 S.Ct. at 2136-37. Conversely, an officer oversteps the line if the search for contraband continues after the officer realizes that no weapons are present; even if probable cause to believe that contraband is present arises thereafter, the seizure would be unlawful. The Court in Dickerson found that that search was unlawful because the officer continued to squeeze and manipulate the contents of the suspect's pocket after having established that it contained no weapon. Id. at 378, 113 S.Ct. at 2137.
As in Dickerson, the question here is whether the officers were acting within the bounds of a permissible protective patdown search when probable cause arose to believe that Rogers' pocket contained contraband. Viewing the evidence in the light most favorable to the government, see United States v. Mussaleen, 35 F.3d 692, 697 (2d Cir.1994), we conclude that the police were acting well within the bounds of Terry. Sergeant Mason was conducting a lawful protective patdown search (a point that Rogers concedes) when he felt the heavy object in Rogers' coat pocket. He manipulated the object for "a few seconds" to determine what it was, and felt "a hard object and then a softer object." At that point, Mason was not yet able to exclude the possibility that there was a...
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