U.S. v. Alexander

• Decision Date: 14 June 1990
• Docket Number: D,No. 1248,1248
• Citation: 907 F.2d 269
• Parties: UNITED STATES of America, Appellee, v. Malcolm ALEXANDER, Defendant-Appellant. ocket 89-1655.
• Court: U.S. Court of Appeals — Second Circuit

Page 269

907 F.2d 269

UNITED STATES of America, Appellee, v. Malcolm ALEXANDER, Defendant-Appellant.

No. 1248, Docket 89-1655.

United States Court of Appeals Second Circuit.

Argued May 8, 1990.

Decided June 14, 1990.

Adina Schwartz, New York City (The Legal Aid Soc. Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.

Gabriel W. Gorenstein, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., David E. Brodsky, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before ALTIMARI and MAHONEY, Circuit Judges, and CARTER, District Judge. ^*

ALTIMARI, Circuit Judge:

Defendant-appellant Malcolm Alexander appeals from a judgment of conviction, entered in the United States District Court for the Southern District of New York, finding him guilty of possession with intent to distribute five grams or more of a mixture containing cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(B). The district court sentenced Alexander to five years' imprisonment to be followed by four years of supervised release. On this appeal, Alexander contends that his conviction should be reversed on the ground that the district court failed to suppress evidence obtained as a result of an investigative stop conducted by three law enforcement officers. The central issue presented is whether the investigative stop was so intrusive as to constitute an arrest requiring probable cause.

For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

On November 17, 1989, at approximately 6:00 p.m., Special Agent Michael Grabowski of the Drug Enforcement Administration ("DEA") and two other DEA agents were conducting surveillance from an unmarked car on Broadway between 143rd and 144th Streets in Manhattan. The agents were familiar with the neighborhood and were aware that a high volume of narcotic trafficking took place in the area. On previous occasions, Agent Grabowski had visited the area, witnessed numerous drug transactions and made several arrests for narcotics offenses. As the agents sat in their car, they observed a green Jaguar double-park at the corner of 144th Street and Broadway. The driver and the passenger, later identified as Alexander, exited the Jaguar and began walking west down 143rd Street, away from the commercial activity on Broadway. Agent Grabowski observed that as Alexander walked, he looked about furtively and appeared to be "checking-out" the area. Alexander and his companion then walked out of the agents' sight.

Approximately 25 minutes later, Alexander and the driver walked around the corner of 143rd and Broadway and back into the agents' view. Although empty handed when he left, Alexander was now carrying a brown paper bag. The agents saw Alexander put the bag into his pocket. The driver and Alexander then got into the Jaguar and began driving south on Broadway.

The agents followed the Jaguar as it signaled for turns it did not make, drove at excessive speeds and ran at least two red lights. Agent Grabowski also noticed that the driver was looking incessantly in his rear view mirror. Based on his experience in law enforcement, Agent Grabowski concluded that the driver was seeking to determine whether he was being followed by a police surveillance vehicle. After following for fourteen blocks, the agents used a red light and a siren to stop the Jaguar near Broadway and 129th Street.

The agents came to a stop behind the Jaguar and exited their car. Agent Grabowski walked toward the passenger side of the Jaguar with his gun unholstered and at his side. When he reached the car, Agent Grabowski knocked on the passenger window and informed Alexander he was a police officer. The agent directed Alexander to exit the car and to place his hands on the hood. Grabowski then frisked Alexander and felt a bulge in his jacket pocket. Unable to determine whether or not the object was a weapon, the agent reached into the pocket and squeezed the object. Based on his professional experience, Agent Grabowski determined that the object was a package containing crack vials.

The agent removed the crack vials, which were enclosed in a brown paper bag, and placed them in his own pocket for safekeeping. Alexander then was arrested, handcuffed and subjected to a complete search. Another brown paper bag was discovered in Alexander's right jacket pocket. The second bag contained 11 grams of crack cocaine. A search of the Jaguar yielded two additional vials containing crack.

Alexander and the driver, who also was arrested, were transported to DEA headquarters in Manhattan. After being properly informed of his constitutional rights, Alexander admitted that he purchased approximately $300 worth of cocaine along with 100 crack vials. Alexander also stated that he intended to put the crack in the vials and resell it on the street for a profit of approximately $700.

Alexander moved to suppress the post-arrest statements and the physical evidence, arguing that they were fruits of an illegal arrest. A hearing was held at which Agent Grabowski was the sole witness. Following the hearing, Judge Duffy issued a Memorandum and Order denying Alexander's motion to suppress. United States v. Alexander, 89 CR. 113 (KTD) (S.D.N.Y. June 2, 1989). Alexander subsequently waived his right to a jury trial, and the case was tried before the Court on stipulated facts. On October 5, 1989, Alexander was found guilty.

DISCUSSION

On this appeal, Alexander complains that the district court erred in not granting his motion to suppress. Specifically, Alexander argues that the DEA agents' actions, which included approaching the Jaguar with unholstered guns, ordering Alexander out of the car and frisking him, were so intrusive as to amount to an arrest requiring probable cause. We disagree.

Before addressing Alexander's primary contention, however, we consider the initial validity of the investigative stop by the DEA agents. In evaluating whether an investigative stop is reasonable under the Fourth Amendment, the reviewing court must determine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). Under the first element of this inquiry, an investigative stop does not comport with the requirements of the Fourth Amendment unless "specific articulable facts, together with rational inferences from those facts, [ ] reasonably warrant suspicion" that the individual stopped was engaged in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975); Terry, 392 U.S. at 21, 88 S.Ct. at 1879; United States v. Nargi, 732 F.2d 1102, 1105 (2d Cir.1984).

In the present case, the agents watched as the Jaguar parked in a drug ridden neighborhood. As Alexander walked from the car he "checked out" the area. Alexander and his companion then left the Jaguar double-parked and unattended for approximately 25 minutes. When they returned to the car, Alexander was carrying a brown paper bag. The agents followed as the Jaguar was driven from the scene in an evasive manner. Moreover, the Jaguar's driver was seen looking repeatedly in the rear view mirror as if to detect possible police surveillance.

"Perhaps none of these facts, standing alone, would give rise to a reasonable suspicion; but taken together as appraised by an experienced law enforcement officer, they provided clear justification to stop the vehicle[ ] and pursue a limited investigation." Sharpe, 470 U.S. at 683 n. 3, 105 S.Ct. at 1573 n. 3. Numerous cases of this Court attest that the type of behavior exhibited by Alexander is sufficient to warrant an investigative stop. See, e.g., United States v. Harley, 682 F.2d 398, 400-01 (2d Cir.1982); United States v. Orlando Vasquez, 638 F.2d 507, 521-22 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981); see also United States v. Ceballos, 654 F.2d 177, 186-87 (2d Cir.1981) (Meskill, J., dissenting). Indeed, Alexander all but concedes that a reasonable suspicion existed for the stop. Accordingly, we have no difficulty concluding that the agents were justified in stopping the Jaguar.

We next turn to the primary focus of Alexander's appeal, whether the scope of the investigative stop was reasonably related to the circumstances which justified the stop in the first place. Terry, 392 U.S. at 20, 88 S.Ct. at 1879; see Orlando Vasquez, 638 F.2d at 520. Alexander argues that he was improperly subjected to a "maximal intrusion" which was tantamount to an arrest requiring probable cause. In advancing this argument, Alexander emphasizes that the DEA agents approached the Jaguar with guns unholstered, ordered him to exit the car and then frisked him.

There are no hard and fast rules for evaluating the conduct of law enforcement agents conducting investigative stops. See Nargi, 732 F.2d at 1106; Harley, 682 F.2d at 402. A law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself and an obligation to ensure the safety of innocent bystanders, regardless of whether probable cause to arrest exists. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1926, 32 L.Ed.2d 612 (1972); Terry, 392 U.S. at 23-24, 27, 88 S.Ct. at 1881-1882, 1883; United States v. Jackson, 652 F.2d 244, 249-50 (2d Cir.), cert. denied, 454 U.S. 1057, 102 S.Ct. 605, 70 L.Ed.2d 594 (1981). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

There are, of course, occasions when...