303 F.3d 440 (2nd Cir. 2002), 01-1488, U.S. v. Casado

Docket Nº:01-1488.
Citation:303 F.3d 440
Party Name:UNITED STATES of America, Appellee, v. Jose Antonio CASADO, Defendant-Appellant.
Case Date:September 12, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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303 F.3d 440 (2nd Cir. 2002)

UNITED STATES of America, Appellee,

v.

Jose Antonio CASADO, Defendant-Appellant.

No. 01-1488.

United States Court of Appeals, Second Circuit

September 12, 2002

Argued: April 5, 2002.

Michael P. Schiano, Rochester, NY, for Defendant-Appellant.

Everardo A. Rodriguez, Assistant United States Attorney (Kathleen M. Mehltretter, United States Attorney for the Western District of New York), Rochester, NY, for Appellee.

Before KEARSE, SACK, and B.D. PARKER, Circuit Judges.

SACK, Circuit Judge.

Defendant Jose Antonio Casado pleaded guilty in the United States District Court for the Western District of New York (David G. Larimer, Chief Judge) to possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and to disobeying a lawful court order in violation of 18 U.S.C § 401(3). Casado conditioned his guilty plea on the possession count upon his ability to appeal from the district court's denial of his motion to suppress the fruits of a

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search of his pocket by a police officer. Casado challenges the district court's conclusion that the officer's reach into his pocket and removal of its contents were justified as a protective weapons search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).1 We agree with Casado's argument that the search was excessive in scope. We therefore vacate the judgment in part and remand the case to the district court with instructions to vacate the order denying Casado's motion to suppress and to grant the motion, and for further proceedings consistent with this opinion.

BACKGROUND

In denying Casado's motion to suppress, the district court adopted the report and recommendation of Magistrate Judge Jonathan W. Feldman. Unless otherwise indicated, the facts presented here are as found by the magistrate judge or are not challenged by either party on appeal.

Casado was arrested by Investigator John Storer of the Ontario County (New York) Sheriffs Office. At the time of the arrest, Storer had twenty-two years of police experience, including seven in a special narcotics unit. During his career, Storer had made hundreds of arrests of drug traffickers, purchased illegal drugs in the course of undercover operations for various police agencies on many occasions, and, by his own estimate, patted down (or "frisked") more than 1,000 persons suspected of drug offenses.

On November 24, 1998, Storer was working as part of a police team conducting surveillance of various locations in Geneva, New York, where drug activity was suspected. He was sitting in an automobile in a parking lot on the east side of North Main Street, which runs north and south in Geneva. He had selected that location so that he could monitor activities at an apartment building on Castle Street, which intersects North Main Street just north of the parking lot.

Storer was in radio contact with the other officers in the surveillance team, who periodically transmitted descriptions of activities at their various locations. At approximately 5 p.m., Storer overheard the first of a series of radio transmissions describing events on Seneca Street, which intersects North Main Street south of the parking lot where Storer was located. According to the first transmission, an individual, later identified as Casado, had emerged from a station wagon parked on the south side of Seneca Street and entered 118 Seneca Street, an apartment building. The police had recently received information that the building was the site of frequent drug sales, and Storer had

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personally purchased drugs and executed search warrants in that building in the past. A subsequent radio transmission indicated that, with Casado still inside 118 Seneca Street, the station wagon driver, later identified as Felix Osso, had pulled the car into the street, turned north onto North Main Street, and stopped just south of Storer's position in the parking lot. Osso then emerged from the station wagon, walked down an alley, and behaved in a manner that suggested to the observing officer that Osso was urinating.

After Storer's radio briefly fell silent, he received another transmission describing events just to the south of his position: After spending approximately fifteen minutes inside the apartment building, Casado had emerged, and was walking in the direction of North Main Street. Upon reaching it, he turned north and rendezvoused with Osso. The transmission further indicated that as the two men continued walking north together along North Main Street, Osso handed Casado something, which Casado placed in the right front pocket of his pants.

Knowing that the two men would soon reach Storer's position, and that four other members of the police surveillance team were no more than a block away, Storer decided to act. His plan was to arrest Osso for urinating in public, and to question Casado regarding potential drug activity at 118 Seneca Street. Storer issued a command over the radio—"We're going to stop them"—and then emerged from his automobile. Hr'g Tr. at 128. As Casado and Osso reached the parking lot, they turned, entered it, and walked toward Storer. Storer, meanwhile, approached them on foot, noticing that Casado had his right hand in the right front pocket of his pants, and had his left hand over that pocket. Storer shouted, "Police, take your hand out of your pocket." Id. at 98. Casado did not comply, but instead, according to Storer's testimony, "looked to the left and . . . to the right." Id. at 99-100. This prompted Storer to draw his gun, point it at Casado, and twice more order him to remove his hand from his pocket. Casado still did not comply. At this point, the other officers in Storer's team were entering the parking lot and approaching Casado and Osso from behind. As these officers took Osso into custody, Storer reholstered his weapon and approached Casado. Storer then seized Casado's right hand, pulled it out and away from his pocket, and kept it in his grip. Without conducting a pat-down, Storer then reached with his free hand into the pocket where Casado's hand had been and removed its contents, which included a pager, cash, and crack cocaine in a plastic bag. Storer yelled toward the other officers, "We got dope," upon which Casado exclaimed, "It's all me, it's on me, it's for personal use. It's my personal use." Id. at 114, 143. Casado was then arrested.2

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On May 25, 1999, Casado was indicted for, inter alia, possessing with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). He pleaded not guilty and moved to suppress the evidence taken from his pocket and his inculpatory statements at the time of his arrest. After conducting an evidentiary hearing on September 9, 1999, the magistrate judge issued a report and recommendation concluding that Casado's motion should be denied. The magistrate judge was of the view that Storer's seizure of Casado was proper because Storer reasonably suspected that Casado was armed, and further that the scope of the search of Casado's pocket was reasonable because of Casado's failure to remove his hand from that pocket in response to Storer's commands.

On February 9, 2000, the district court adopted the magistrate judge's report and recommendation, denied Casado's motion to suppress, and set the case for trial. Casado promptly fled the jurisdiction. A fugitive for ten months, he was apprehended in Philadelphia on February 22, 2001. The government secured a superseding indictment on March 29, 2001, which added to Casado's drug charges one count of disobedience of a lawful order of a United States court in violation of 18 U.S.C. § 401(3).

Casado pleaded guilty to the possession and disobedience counts in his indictment pursuant to a plea agreement. On August 23, 2001, the district court sentenced him principally to sixty-three months in prison for possessing with intent to distribute cocaine base, and nine months for disobeying a lawful court order. In his plea agreement, Casado reserved his right to appeal the denial of his motion to suppress and to withdraw his plea to the drug charge should his appeal succeed. This is that appeal.

DISCUSSION

The confrontation between Casado and Investigator Storer involved both a "search" and a "seizure" within the meaning of the Fourth Amendment: Casado was seized when Storer grabbed his hand, if not before, and searched when Storer reached into his pocket. Casado now challenges the constitutionality of both. We conclude that the search of Casado's pocket was "unreasonable" under, and was therefore forbidden by, the Fourth Amendment, and thus that the evidence obtained during the course of the search was inadmissible. We do not reach the separate questions regarding the timing and reasonableness of the seizure.

I. Standard of Review

Although we review de novo the legal issues presented by a motion to suppress, we accept the district court's factual findings unless clearly erroneous, and we view those facts in the light most favorable to the government. United States v. Peterson, 100 F.3d 7, 11 (2d Cir.1996).

II. Terry Weapons Searches

It is well established that warrantless searches and seizures are per...

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