United States v. Bernardo Rodriguez

Opinion

USCA1 Opinion

June 13, 1995         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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          No. 94-2094



                                    UNITED STATES,



                                      Appellee,



                                          v.



                             JOSE A. BERNARDO-RODRIGUEZ,



                                Defendant - Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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                                _____________________



               Mar a  H.  Sandoval,  by   Appointment  of  the  Court,  for
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          appellant.

               Warren V zquez,  Assistant United States Attorney, with whom
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          Guillermo  Gil,  United  States  Attorney, and  Jos   A.  Quiles-
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          Espinosa, Senior Litigation Counsel, were on brief for appellee.
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Per  Curiam.   Defendant-appellant  Jos   A.  Bernardo-
                    Per  Curiam
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          Rodr guez appeals  his conviction  for possession with  intent to



          distribute two  kilograms of cocaine  in violation  of 21  U.S.C.



            841(a)(1).   Specifically,  Bernardo-Rodr guez claims  that his



          conviction rests on evidence found in an unlawful search, and the



          district  court's  denial of his motion to suppress this evidence



          was in error.  For the following reasons, we affirm.



                                      BACKGROUND
                                      BACKGROUND
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                    We  view the facts in  the light most  favorable to the



          ruling court's decision  to the extent  that they derive  support



          from the record and are not clearly  erroneous.  United States v.
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          Sealey, 30 F.3d 7, 8 (1st Cir. 1994).  While  working at the Luis
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          Mu oz Mar n International Airport in Puerto Rico on May 23, 1993,



          Puerto   Rico  Police   Officer  Rafael   Pacheco-Cruz  ("Officer



          Pacheco")  noticed the  appellant acting  nervously and  avoiding



          contact  or   confrontation  with  airport  or   law  enforcement



          officials. Bernardo-Rodr guez was walking awkwardly  and sweating



          profusely, yet was wearing a jacket completely buttoned.  Officer



          Pacheco observed a square-shaped object protruding from the right



          side  of  Bernardo-Rodr guez' abdominal  area.   Officer  Pacheco



          followed  Bernardo-Rodr guez   to  the  control  station  at  the



          gateway, where he observed Bernardo-Rodr guez nervously trying to



          adjust the front of his jacket.



                    At  the  control  station,   Bernardo-Rodr guez  passed



          through  the  metal  detector  once  uneventfully.    At  Officer



          Pacheco's  request  of  airport  security   personnel,  Bernardo-


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Rodr guez  was directed to remove his jacket and walk through the



          metal  detector  a second  time.    While Bernardo-Rodr guez  was



          removing his jacket, one of his shirt buttons  became unbuttoned,



          allowing Officer  Pacheco to  more clearly see  the square-shaped



          object  protruding from  the  right side  of  his stomach.    The



          officer then  moved to Bernardo-Rodr guez' left  and observed the



          same  sort of square-shaped object there.  At this point, Officer



          Pacheco  approached Bernardo-Rodr guez  and asked,  "What do  you



          have there?"   Bernardo-Rodr guez replied, "What  are you talking



          about?"   The  officer repeated  his question,  slightly touching



          Bernardo-Rodr guez'   abdomen.     Officer  Pacheco   then  asked



          Bernardo-Rodr guez to  follow him.   Once out of  public viewing,



          Officer Pacheco asked Bernardo-Rodr guez  to lift his shirt. When



          Bernardo-Rodr guez  complied  with  this  request,  two  packages



          strapped  to  his  abdomen under  a  lycra  exercise  belt became



          visible.1   Officer Pacheco then arrested  Bernardo-Rodr guez and



          seized the packages, in which cocaine was later found.



                                       ANALYSIS
                                       ANALYSIS
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                    As  explained above,  we review findings  of fact  on a

                              
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          1  Bernardo-Rodr guez testified  that he never voluntarily lifted

          his  shirt, but that Officer Pacheco  lifted it without Bernardo-

          Rodr guez'  consent.  He  now contends that  the magistrate judge

          erred in disregarding his version of events and crediting that of

          Officer Pacheco.   Credibility determinations,  however, are  the

          province  of the presiding court in a suppression hearing, and we

          review them  only for clear error.   United States  v. Zapata, 18
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          F.3d 971, 975 (1st  Cir. 1994).  This deferential  standard stems

          from  the presiding  court's opportunity  to hear  the testimony,

          observe the  witnesses' demeanor,  and evaluate the  facts first-

          hand.   Id.  Because we find no indication in the record that the
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          magistrate  judge's  credibility   determinations  were   clearly

          erroneous, we uphold his factual findings.



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motion to suppress only for clear error.  Zapata, 18 F.3d at 975.
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          Notwithstanding  the deference  given to  factual determinations,



          however, we review questions of law de novo.  Id.
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                    In challenging  the denial  of his motion  to suppress,



          Bernardo-Rodr guez' primary contention is that the seizure of the



          cocaine was the result  of an illegal "pat-down" frisk  search by



          Officer  Pacheco.   Specifically,  he  challenges  the  presiding



          court's  finding that  Officer Pacheco's  detention of  Bernardo-



          Rodr guez was a  lawful Terry stop.  See Terry  v. Ohio, 392 U.S.
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          1,  23 (1968).    Bernardo-Rodr guez contends  that under  Terry,
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          Officer  Pacheco could  not lawfully  touch him  in the  abdomen,



          because  he  had  already  gone  through  a  metal  detector  and



          therefore  could not have had a weapon.  Officer Pacheco's slight



          touching of  his abdomen,  says Bernardo-Rodr guez, rendered  the



          detention unlawful, and the  contraband found as a result  should



          have been suppressed.



                    It  is elementary  that  under Terry,  "where a  police
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          officer observes  unusual conduct  which leads him  reasonably to



          conclude in light of his experience that criminal activity may be



          afoot," the  officer may briefly  stop the suspicious  person and



          make reasonable  inquiries aimed at confirming  or dispelling his



          suspicions.  Terry, 392 U.S. at 30.  The officer may also conduct
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          a patdown search, or  "frisk," where the officer is  justified in



          believing that the person  is armed and dangerous to  the officer



          or others.  Id.  This protective search must be  "limited to that
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          which  is necessary for the  discovery of weapons  which might be


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used to harm the officer or others nearby."  Id. at 26.
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                    In the  instant case,  however, the contraband  was not



          found  through the  disputed touching,  but only  after Bernardo-



          Rodr guez had  lifted  his  shirt and  Officer  Pacheco  saw  the



          packages.    The  narrow  issue, therefore,  is  whether  Officer



          Pacheco's  slight  touching  of Bernardo-Rodr guez'  abdomen  was



          sufficiently coercive  to convert the detention  into an unlawful



          seizure,  and  thus  render   the  subsequent  consensual  search



          invalid.  We find that it was not.



                    If  otherwise  lawful Terry  stops  become sufficiently
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          coercive, they become de facto  or constructive arrests, and thus
                                __ _____



          must  be supported by probable cause  rather than mere reasonable



          suspicion.  Zapata,  18 F.3d  at 975.   In such cases,  reviewing
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          courts  must   determine  whether  under  the  circumstances  "'a



          reasonable man  in the  suspect's position would  have understood



          his situation'  . . .  to be  tantamount to being  under arrest."



          Id.  (citing Berkemer v. McCarty, 468  U.S. 420, 442 (1984)).  If
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          so, then probable cause must  support the officer's detention and



          use  of force  on the  suspect.   Id.  If  probable cause  is not
                                            __



          present,  then  the stop  is  an  unreasonable seizure,  and  any



          subsequent consent  given by the  suspect to further  searches is



          deemed involuntary.  Id.
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                    Although   physical   contact   is   relevant   to  the



          reasonableness of a suspect's perception that he is under arrest,



          not  every  physical contact  between  an officer  and  a suspect



          constitutes  coercion.  Zapata, 18 F.3d at 977.  We have recently
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recognized  that  an officer  need  not have  probable  cause for



          certain  de   minimis  uses  of  force   incident  to  legitimate
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          investigatory stops.  Id.  In Zapata, we rejected the appellant's
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          argument  that  a  slight  touching  by  the  officer  during  an



          investigatory stop  rendered the seizure invalid,  holding that a



          "modest  laying-on of hands" by an  officer on a suspect during a



          otherwise lawful investigatory stop did not convert the detention



          into  an unlawful arrest unsupported  by probable cause.   Id. at
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          976-77.



                    Officer  Pacheco's  initial   detention  of   Bernardo-



          Rodr guez  was  certainly  supported  by   reasonable  suspicion,



          particularly  given the  square  objects visibly  protruding from



          Bernardo-Rodr guez' abdomen, and  his unusual, nervous  behavior.



          Moreover, we believe that  Officer Pacheco's slight,  unintrusive



          touching  -- hardly  more  than a  gentle  poke --  of  Bernardo-



          Rodr guez' abdomen  during the  lawful detention was  de minimis.
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          It is much less intrusive than a pat-down or handcuffing, both of



          which  have been upheld as lawful uses of physical force incident



          to a Terry stop. See Zapata, 18 F.3d at 977 (citing United States
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          v. Willis,  967 F.2d 1120, 1223 (8th Cir. 1992) and Tom v. Voida,
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          963 F.2d  952, 958  (7th Cir.  1992)).    The touching  is simply



          insufficient  to  convert the  stop  into  a constructive  arrest



          unsupported  by  probable  cause.   We  conclude  that  Bernardo-



          Rodr guez was not unlawfully  seized and therefore find that  his



          motion to suppress was properly denied.



                    For these reasons, we affirm his conviction.
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