U.S.A. v. Cook, No. 01-1405

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: BARBADORO
• Citation: 277 F.3d 82
• Parties: (1st Cir. 2002) UNITED STATES OF AMERICA, Appellee, v. Donald Cook, Defendant, Appellant. Heard
• Docket Number: No. 01-1405
• Decision Date: 08 November 2001

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277 F.3d 82 (1st Cir. 2002) UNITED STATES OF AMERICA, Appellee,
v.
Donald Cook, Defendant, Appellant. No. 01-1405 United States Court of Appeals For the First Circuit Heard Nov. 8, 2001
Decided January 18, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Joseph L. Tauro, U.S. District Judge

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John H. LaChance, for appellant.

John A. Wortmann, Jr., Assistant United States Attorney, with whom James B. Farmer, United States Attorney, were on brief for the appellee.

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Before Lipez, Circuit Judge Coffin, Senior Circuit Judge and Barbadoro,^* District Judge

BARBADORO, District Judge.

A grand jury indicted Donald Cook for possession of crack cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1). Cook subsequently moved to suppress the cocaine, arguing that the police seized it in violation of his Fourth Amendment rights. The district court denied the motion because it determined that the cocaine was lawfully seized following an investigative stop authorized by Terry v. Ohio, 392 U.S. 1 (1968). Ultimately, Cook was convicted of the lesser-included offense of possession of more than five grams of crack cocaine. See 21 U.S.C. § 844. He appeals his conviction, arguing that the court erred in denying his suppression motion. We affirm.

I.

We construe the record in the light most favorable to the district court's ruling, drawing reasonable inferences in the government's favor. See United States v. McCarthy, 77 F.3d 522, 525 (1st Cir. 1996); see also United States v. Payton, 615 F.2d 922, 923 (1st Cir. 1980). The following recitation is derived from testimony given at the suppression hearing, as well as from affidavits submitted by two of the three arresting officers.

In the early morning hours of July 31, 1999, Boston Police Officers Craig Jones, Mark Freire, and John Conroy were patrolling the River Street area of Mattapan in an unmarked Crown Victoria sedan. Jones was driving. The officers were members of the Boston Police Department's Youth Violence Strike Force and were in plain clothes. Freire and Jones, who had 28 years of experience between them, were familiar with their locale and understood it to be a high-crime area in which the trafficking of cocaine and other drugs was common.

At approximately 1:30 a.m., the officers approached the Rolls Club, a Mattapan bar. All of the officers knew that members of a street gang, known as KOZ, frequented the Rolls Club. Jones knew that KOZ was heavily involved in drug trafficking and firearms offenses. Jones also understood that Cook, whom he had known for years, was a member of KOZ and had a criminal history that included convictions for drug trafficking, crimes of violence, and at least one firearms offense. Freire did not know Cook. Nor was he familiar with Cook's criminal history.

As the officers approached the club in their unmarked vehicle, Freire observed Cook and a second man facing each other with their hands extended as if they were about to exchange something. Before any exchange took place, the men looked at the approaching police vehicle and, apparently recognizing it as such, pulled their hands back and separated. Cook then entered the passenger side of a nearby Ford Explorer, which was illegally parked with all four wheels on the sidewalk, and slid across behind the steering wheel. Jones first noticed Cook when he was inside the Explorer. After recognizing Cook, Jones stopped his vehicle and made eye contact with Cook, who looked alarmed. Both Freire and Jones thereafter saw Cook rise up out of his seat as if to place something in his pants or in the seat behind him. Jones identified Cook to his fellow officers and advised them that he thought Cook might have a gun. Freire, who had observed Cook's interaction with the unidentified man on the street, also was concerned

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that Cook had risen up out of his seat to hide drugs.

All three officers exited the police vehicle and approached the Explorer. Jones advanced toward the driver's side with his weapon drawn and asked Cook, through the open window, whether he had a gun. Cook replied that he did not. Jones then leaned in the driver's side window and, to the extent that he was able, patted Cook down. He then escorted Cook to the back of the Explorer and left him with Freire while he searched the vehicle for weapons. Freire, having noticed that Jones had not been able to conduct a complete pat-down of Cook, began patting him down. As he was doing so, he asked Cook whether he was concealing anything of which the officers should be aware. Cook responded that he had some marijuana.

Jones completed his search of the Explorer within a minute and returned to the back of the vehicle while Freire was completing the pat-down. Jones asked Cook if he had placed something in his pants, and Cook replied that he had "a little bit of weed" on him. Jones was skeptical and told Cook so, commenting that he wasn't going to lock him up for "a little bit of weed." At that point, Cook admitted that he had "few hits...