U.S. v. Trullo

• Decision Date: 13 January 1987
• Docket Number: No. 86-1728,86-1728
• Citation: 809 F.2d 108
• Parties: UNITED STATES of America, Appellee, v. John F. TRULLO, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 108

809 F.2d 108

UNITED STATES of America, Appellee, v. John F. TRULLO, Appellant.

No. 86-1728.

United States Court of Appeals First Circuit.

Argued Nov. 5, 1986.

Decided Jan. 13, 1987.

Owen S. Walker, Federal Defender Office, for appellant.

Sydney Hanlon, Asst. U.S. Atty., with whom Robert S. Mueller, III, U.S. Atty., was on brief for appellee.

Before COFFIN, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

TIMBERS, Circuit Judge:

John F. Trullo ("appellant") appeals from a judgment of conviction entered July 18, 1986 in the District of Massachusetts, Walter J. Skinner, District Judge, on a conditional plea of guilty to a one count indictment charging appellant with possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1982). Appellant, having pleaded guilty, reserved his right to appeal the issues relating to his May 2, 1985 stop and arrest.

On appeal, appellant argues, first, that the officers did not have the requisite articulable suspicion, required by Terry v. Ohio, 392 U.S. 1, (1968), to justify the stop of appellant; second, that the officer's use of a drawn gun at the time of the stop turned that stop into an arrest for which probable cause was lacking; and, third, that the officer's decision to frisk appellant was unreasonable.

We hold that appellant's actions and the location at which they took place, when viewed through the prism of an experienced police officer, gave rise to a particularized and reasonable suspicion of criminal activity. We also hold that the officer's drawing of his gun was reasonable under the circumstances and did not transform the legitimate stop into an arrest. We further hold that the officer was warranted in the belief that his safety was in danger and therefore his pat down of appellant clearly was justified.

While we acknowledge that this is a close case, for the reasons which follow we affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On May 2, 1985 at 1:00 PM two Boston police detectives and a DEA agent in an unmarked car were patrolling that portion of Boston known as the "Combat Zone" for drug activity. The Combat Zone is a high crime area known for prostitution and drug dealing. As the officers were stopped at a light, they noticed a gray Thunderbird automobile stopped on the curb of Washington Street with a man (whom we now know as appellant) at the wheel. Washington Street is the main street of this portion of the Combat Zone. As the officers watched, a second man approached the Thunderbird from the sidewalk and engaged appellant in a twenty second conversation through the open passenger-side window. The second man got into the car and had an additional five or ten second conversation with appellant. The car then pulled out and proceeded for two blocks until it made a right turn onto Hayward Place, a short street which connects Washington Street and Harrison Avenue. The officers followed the Thunderbird in their unmarked car.

While Hayward Place is trafficked during early morning and late afternoon rush hours, it was deserted at the time appellant entered it. The officers parked three car lengths behind appellant's car and had an unobstructed view of it. The officers observed appellant and the second man engaged in a thirty second discussion with their heads inclined toward each other. The second man then got out of the car and walked back toward Washington Street. One of the officers followed him on foot.

Appellant, with the other two officers following, drove his car out of Hayward Place onto Harrison Avenue where he stopped for a red light. The two officers, who were not in uniform, got out of their car and approached appellant's car on foot. The officer on the driver's side of appellant's car approached with his badge in his left hand and his drawn gun in his right hand. That officer identified himself as a police officer and asked appellant to get out of the car. As appellant opened the door and got out, the officer noticed a "bulge" in appellant's right-hand pants pocket. The officer asked appellant what it was and patted it with his hand. The officer testified that it felt hard and narrow like a knife. The officer reached into the pocket and found a knife with a spring-activated blade retracted in the handle. The officer then arrested appellant for carrying an illegal weapon in violation of state law. A subsequent search of appellant's person at the station house during booking disclosed two half-gram packets of cocaine in appellant's hat. An inventory search of appellant's car disclosed a fake oil can containing 22 half-gram packets of cocaine.

On May 17, 1985 appellant was indicted on one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). On June 10, 1985 appellant moved to suppress the cocaine seized from his person and car as products of an illegal search. Appellant claimed that the officers did not have either "articulable suspicion" to justify stopping appellant or probable cause to arrest him. He also claimed that the inventory search of the car was illegal even if the stop and arrest were legal.

In an opinion dated August 5, 1985 the district court granted the motion to suppress in part. The court held that the circumstances leading to the officers' stop of appellant provided sufficient articulable suspicion to permit a Terry stop. Terry v. Ohio, 392 U.S. 1, (1968). The court held that the officer's seizure of the knife also was justified under Terry. The court, therefore, refused to suppress the cocaine found on appellant's person as fruit of a lawful stop and arrest. The court, however, held that the inventory search was in bad faith and impermissible. It suppressed the cocaine found in the trunk. The government appealed that portion of the order suppressing the cocaine found in the trunk. We reversed the district court and held the inventory search to be permissible. 790 F.2d 205 (1st Cir.1986). We did not address the court's Terry ruling.

On June 16, 1986 appellant entered a conditional plea of guilty, reserving his right to appeal the permissibility of his stop and arrest. See Fed.R.Crim.P. 11(a)(2). On July 18, 1986 the court sentenced appellant to two years in prison. He currently is serving the sentence.

For the reasons stated below, we affirm the judgment of conviction and of course the propriety of the May 2, 1985 stop and arrest.

II.

In Terry v. Ohio, supra, 392 U.S. at 25-27, the Supreme Court recognized that, although the Fourth Amendment regulates police-citizen encounters which fall short of full scale arrests, it does not prohibit encounters based on less than probable cause for arrest. While it is beyond cavil that not all police-citizen encounters implicate Fourth Amendment concerns, there is a grey area into which some encounters fall. The Court in Terry held that more intrusive encounters, short of a full scale arrests, must be justified by reasonable suspicion proportional to the degree of the intrusion. Id. at 19. That suspicion cannot be inchoate, but must be based on "specific and articulable facts ... together with rational inferences from those facts...." Id. at 21.

The Supreme Court has enunciated a dual inquiry for evaluating the reasonableness of a "Terry stop". A court reviewing police action must inquire:

"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."

United States v. Sharpe, 470 U.S. 675, (1985) (quoting Terry, supra, 392 U.S. at 23. See also United States v. Streifel, 781 F.2d 953 (1st Cir.1986) (applying Sharpe standard). In the instant case, having made this inquiry, we answer it in the affirmative and hold that the investigative stop of appellant was reasonable and comported with Terry requirements. In so holding, we believe it is appropriate to state that the facts presented by this case, in our view, represent the outermost reaches of a permissible Terry stop; and it should be borne in mind that "... in law as in life, today's satisfactory explanation may very well be tomorrow's lame excuse." United States v. Vazquez, 605 F.2d 1269, 1280 (2d Cir.1979).

A.

We wish to make clear at the outset that a determination of whether the stop was justified at its inception depends on the totality of the circumstances confronting the officer. "[T]he assessment must be based upon all of the circumstances." United States v. Cortez, 449 U.S. 411, 418 (1981). As the Second Circuit put it, "We view as wise the admonition of the District of Columbia Circuit that 'the circumstances before [the officer] are not to be dissected and viewed singly; rather they must be considered as a whole.' " United States v. Magda, 547 F.2d 756, 758 (2d Cir.1976), cert. denied, 434 U.S. 878 (1977) (quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976)).

The initial factor which the officers considered was the nature of the Combat Zone, the area in which appellant's conduct took place. "Officers may consider the characteristics of the area in which they encounter a vehicle." United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). See Cortez, supra, 449 U.S. at 411. ("Of critical importance, the officers knew that the area was a crossing point for illegal aliens.") See also United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir.1985) (totality of circumstances includes fact that area known as one in which contraband pick-ups are made); United States v. Rickus, 737 F.2d 360, 365 (3d Cir.1984) ("The reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely."); United States v. Gomez, 633 F.2d 999, 1005 (2d Cir.1980) ("The car was halted in an area of high narcotics activity--a factor appropriate in considering whether an...