U.S. v. Proctor, 97-2420

• Citation: 148 F.3d 39
• Decision Date: 06 April 1998
• Docket Number: No. 97-2420,97-2420
• Parties: UNITED STATES, Appellee, v. Clifford A. PROCTOR, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 39

148 F.3d 39

UNITED STATES, Appellee, v. Clifford A. PROCTOR, Defendant, Appellant.

No. 97-2420.

United States Court of Appeals First Circuit.

Heard April 6, 1998.

Decided July 13, 1998.

Daniel J. Perry, by appointment of the Court, with whom Karen D. Kemble and Silver & Perry were on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Timothy D. Wing, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant Clifford A. Proctor, charged in a three-count superseding indictment, entered a conditional plea of guilty to one count of possession with intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The government dismissed the remaining counts against him. Proctor appeals the district court's denial of his pretrial motion to suppress evidence seized during a pat-down search of his person by state police. We hold that the search and seizure at issue did not violate the Fourth Amendment. Accordingly, we affirm.

I. BACKGROUND

The following facts are essentially undisputed.

In September 1993, the Tucson, Arizona and Camden, Maine police were working together in an investigation of an interstate marijuana growing, shipping and resale conspiracy. Evidence revealed that packages were being sent to RR # 1, Box 4528, Camden, Maine, the residence of Patricia and Todd Proctor. The Camden Police planned a controlled delivery of a package known to contain marijuana, and sought an anticipatory warrant to search the property in conjunction with the delivery. The warrant mentioned only Patricia and Todd Proctor, not their son, Clifford. The warrant also contained no information, speculation, or suspicion that the residence was frequented by anyone buying or selling drugs. The warrant issued for the premises and vehicles under the control of Patricia or Todd Proctor.

After Camden police delivered the package to the Proctor residence at 3:15 on September 9, 1993, three police officers began to execute the warrant. As they did, an individual fled into the woods behind the residence. Two officers pursued, while Officer Cameron Campbell stayed behind to "maintain the internal security and integrity of the residence."

Shortly thereafter, Campbell observed two young men arrive in a vehicle. They climbed the two hundred steps to the Proctors' front door. As they neared the top of the stairs, Campbell stepped out of the house, identified himself, and asked the two men to come up onto the porch. Those men were Clifford Proctor and his friend. As they entered the porch, from a distance of eight to ten feet, the officer noticed a bulge in Proctor's jacket pocket.

The men complied fully with Officer Campbell's instructions. Officer Campbell frisked Proctor first. He touched the bulge in Proctor's jacket pocket and felt a soft, leafy substance in a glassine bag which he believed to be marijuana. He said nothing and proceeded to pat down the other individual. Then Officer Campbell ordered them both to produce identification, which they did. The officer proceeded to ask Proctor to empty his pockets. Proctor emptied his pants pockets and gave Officer Campbell the contents. When Proctor indicated that he had nothing else in his pockets, the officer reached into Proctor's jacket pocket and removed a plastic bag containing marijuana. Proctor was then arrested and a warrant obtained to search his business, the Cranberry Tiger, where more evidence against him was discovered.

The government brought a three-count superseding indictment against Proctor, charging him with conspiring to distribute marijuana. After the indictment was returned, Proctor moved to suppress evidence, challenging, inter alia, the seizure of marijuana from his jacket during Officer Campbell's pat-down search of his person. The district court denied his motion to suppress, finding that the officer had a reasonable basis to perform the frisk given the totality of the circumstances and to remove the glassine bag containing marijuana. Proctor filed a notice of appeal from this denial. Subsequently, he pled guilty to one count of possession with intent to distribute a quantity of marijuana, but had the other counts against him dismissed. His guilty plea is conditional upon the outcome of this appeal.

II. DISCUSSION

We review a district court's findings of fact for clear error and its conclusions of law de novo. See United States v. Young, 105 F.3d 1, 5 (1st Cir.1997). "Determinations of probable cause and reasonable suspicion, relevant to the constitutionality of law enforcement seizures and arrests under the Fourth Amendment, present mixed questions of law and fact which we review de novo." Id.

A. The Pat-Down Search

The Fourth Amendment guarantees "[t]he right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. " '[S]earches and seizures conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well delineated exceptions.' " See United States v. Schiavo, 29 F.3d 6, 8 (1st Cir.1994) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court held:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, ... and where nothing in the initial stages of the encounter serve to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. 1868.

Proctor contends that Officer Campbell lacked a reasonable suspicion to conduct a Terry frisk. Relying substantially on Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), appellant avers that the officer had "no reason to believe [Proctor] had committed, was committing, or was about to commit any offense under state or federal law." Id. at 91, 100 S.Ct. 338. In Ybarra, the Supreme Court held that although a search warrant issued upon probable cause gave police the authority to search the premises of a small public tavern and to search the bartender for narcotics, a pat-down search of a tavern patron, Ventura Ybarra, was not constitutionally permissible where there was no reasonable belief that he was involved in any criminal activity or that he was armed or dangerous.

As the Ybarra court noted, "[w]here the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person." Id. at 91, 100 S.Ct. 338. Likewise, the Terry frisk of appellant must be supported by a reasonable suspicion particularized with respect to Proctor. We find that the facts surrounding Proctor's encounter with the officer gave rise to a reasonable belief that a pat-down search was warranted. Officer Campbell was alone in a remote location, accessible only by climbing two hundred steps, with a package containing five pounds of marijuana nearby. His two fellow officers had just left the house in pursuit of an individual who had fled into the woods. Proctor and his companion arrived at the residence, where a search warrant was being executed, within fifteen minutes of the controlled delivery of marijuana. U...