945 F.2d 47 (2nd Cir. 1991), 1036, United States v. Salazar

Docket Nº:1036, Docket 90-1543.
Citation:945 F.2d 47
Party Name:UNITED STATES of America, Appellee, v. Antonio Duran SALAZAR, Defendant-Appellant.
Case Date:September 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 47

945 F.2d 47 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Antonio Duran SALAZAR, Defendant-Appellant.

No. 1036, Docket 90-1543.

United States Court of Appeals, Second Circuit

September 18, 1991

Argued March 27, 1991.

Page 48

Dietrich L. Snell, Asst. U.S. Atty., New York City, (Otto G. Obermaier, U.S. Atty. for the S.D. New York, David E. Brodsky, on the brief), for appellee.

Before OAKES, Chief Judge, and TIMBERS and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Antonio Duran Salazar appeals from a final judgment of conviction entered in the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, following his conditional plea of guilty to one count of possession, with intent to distribute, of five or more grams of "crack" cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 845a(a) (1988). Salazar was sentenced principally to 63 months' imprisonment, to be followed by four years' supervised release. On appeal, he contends that the district court should have granted his motion to suppress the narcotics seized from him on the basis that (1) the officers who frisked him did not have sufficient grounds for a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and (2) even if the stop was valid, the ensuing search was improper. For the reasons below, we disagree and affirm the judgment of conviction.

I. BACKGROUND

The events leading to Salazar's arrest were described at a suppression hearing by Drug Enforcement Administration ("DEA") special agent Jeffrey DeHart. DeHart testified that on November 29, 1989, during a drug investigation in the 300 block of West 93rd Street in Manhattan, he and four other agents were informed, by a person who had not previously been an informant, that Apartment 226 at 312 West 93rd Street was being used in connection with sales of crack. The informant stated that "a short, dark Hispanic male ... would come and go from that apartment and was selling crack cocaine from there and on the street." (Suppression Hearing Transcript, February 23, 1990 ("Tr."), at 4.)

The agents went to Apartment 226 and were admitted by someone whom they later learned was Julio Santana, the tenant of the apartment. Santana did not meet the description the officers had been given. There was also a young woman in the apartment. After advising Santana why they were there, the officers patted him down, and Santana gave them permission to search the apartment. They had been searching the one-room apartment for some 15 minutes without finding any narcotics when Salazar, a short, dark, Hispanic male, opened the door and entered the apartment. DeHart described the ensuing events as follows:

Q. Can you tell us what you noticed about Mr. Salazar as soon as he entered the apartment?

A. Myself and Agent Cota were standing near the doorway. It is a very small apartment. Right when he entered the apartment, we were all--we all had badges displayed. As soon as he walked in the door, I said, you know, "We're the police, Drug Enforcement."

He stepped up--he was standing between myself and Agent Cota. Mr. Salazar appeared nervous, was looking around at us.

...

Q. Can you tell us now what you did when you noticed Mr. Salazar behaving nervously, as you said?

A. As I said, he was standing right between myself and Agent Cota. At that point we began to pat him down for weapons.

Q. While you were patting him down, what, if anything did you detect?

A. I was standing on the left side of Mr. Salazar, and as I was patting down his coat, when I reached his left coat pocket, it was a bulky coat, I squeezed the outside of the pocket and I felt what appeared to be a plastic--I heard and felt the crackling of plastic. I had a pretty good-sized handful of this item.

At that point I believed it was crack cocaine.

Page 49

Q. Had you had occasion to feel crack cocaine in the form that you felt it that day before?

A. Yes.

Q. What did you do after you felt this object in the pocket?

A. Well, after I felt it, I reached into the pocket and I looked in the pocket and I could see plastic vials with white powder in them. I took one out and looked at it and I said to Agent Grabowski, who was the supervising agent there, and Agent Cota, I said, "He has crack cocaine".

(Tr. 5-7.) The agents then finished patting Salazar down, had him remove his jacket, and advised him that he was under arrest. Approximately 150 vials of crack were found in his pockets.

In support of his motion to suppress the crack vials seized from him, Salazar contended (1) that the agents had no sufficient basis to suspect him of any crime and hence had no basis for stopping him; and (2) that the agents had at most an articulable suspicion that Salazar was a drug dealer, not that he was an armed drug dealer, and hence had no permissible basis for patting him down for weapons.

In an Opinion and Order dated April 17, 1990 ("Decision"), 1990 WL 49047, the district court denied Salazar's suppression motion. It found that the informant had identified a specific apartment and had given a specific description of the drug dealer...

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