United States v. Proctor

• Court: Court of Appeals for the First Circuit
• Decided: July 16, 1998
• Docket: 97-2420
• Status: Published

Opinion

USCA1 Opinion

                                 



                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 97-2420



                          UNITED STATES,



                            Appellee,



                                v.



                       CLIFFORD A. PROCTOR,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                  Bownes, Senior Circuit Judge,



                    and Stahl, Circuit Judge. 



                      _____________________



    Daniel J. Perry, by appointment of the Court, with whom

Karen D. Kemble and Silver & Perry were on brief for appellant.

    Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and Timothy D. Wing,

Assistant United States Attorney, were on brief for appellee.


____________________



                         July 13, 1998

                      ____________________          TORRUELLA, Chief Judge.  Defendant Clifford A. Proctor,

charged in a three-count superseding indictment, entered a

conditional plea of guilty to one count of possession with intent

to distribute a quantity of marijuana in violation of 21 U.S.C.

 841(a)(1) and 18 U.S.C.  2.  The government dismissed the

remaining counts against him.  Proctor appeals the district court's

denial of his pretrial motion to suppress evidence seized during a

pat-down search of his person by state police.  We hold that the

search and seizure at issue did not violate the Fourth Amendment. 

Accordingly, we affirm.

                          I.  BACKGROUND

          The following facts are essentially undisputed.

          In September 1993, the Tucson, Arizona and Camden, Maine

police were working together in an investigation of an interstate

marijuana growing, shipping and resale conspiracy.  Evidence

revealed that packages were being sent to RR #1, Box 4528, Camden,

Maine, the residence of Patricia and Todd Proctor.  The Camden

Police planned a controlled delivery of a package known to contain

marijuana, and sought an anticipatory warrant to search the

property in conjunction with the delivery.  The warrant mentioned

only Patricia and Todd Proctor, not their son, Clifford.  The

warrant also contained no information, speculation, or suspicion

that the residence was frequented by anyone buying or selling

drugs.  The warrant issued for the premises and vehicles under the

control of Patricia or Todd Proctor.

          After Camden police delivered the package to the Proctor

residence at 3:15 on September 9, 1993, three police officers began

to execute the warrant.  As they did, an individual fled into the

woods behind the residence.  Two officers pursued, while Officer

Cameron Campbell stayed behind to "maintain the internal security

and integrity of the residence."

          Shortly thereafter, Campbell observed two young men

arrive in a vehicle.  They climbed the two hundred steps to the

Proctors' front door.  As they neared the top of the stairs,

Campbell stepped out of the house, identified himself, and asked

the two men to come up onto the porch.  Those men were Clifford

Proctor and his friend.  As they entered the porch, from a distance

of eight to ten feet, the officer noticed a bulge in Proctor's

jacket pocket.

          The men complied fully with Officer Campbell's

instructions.  Officer Campbell frisked Proctor first.  He touched

the bulge in Proctor's jacket pocket and felt a soft, leafy

substance in a glassine bag which he believed to be marijuana.  He

said nothing and proceeded to pat down the other individual.  Then

Officer Campbell ordered them both to produce identification, which

they did.  The officer proceeded to ask Proctor to empty his

pockets.  Proctor emptied his pants pockets and gave Officer

Campbell the contents.  When Proctor indicated that he had nothing

else in his pockets, the officer reached into Proctor's jacket

pocket and removed a plastic bag containing marijuana.  Proctor was

then arrested and a warrant obtained to search his business, the

Cranberry Tiger, where more evidence against him was discovered.

          The government brought a three-count superseding

indictment against Proctor, charging him with conspiring to

distribute marijuana.  After the indictment was returned, Proctor

moved to suppress evidence, challenging, inter alia, the seizure of

marijuana from his jacket during Officer Campbell's pat-down search

of his person.  The district court denied his motion to suppress,

finding that the officer had a reasonable basis to perform the

frisk given the totality of the circumstances and to remove the

glassine bag containing marijuana.  Proctor filed a notice of

appeal from this denial.  Subsequently, he pled guilty to one count

of possession with intent to distribute a quantity of marijuana,

but had the other counts against him dismissed.  His guilty plea is

conditional upon the outcome of this appeal.

                         II.  DISCUSSION

          We review a district court's findings of fact for clear

error and its conclusions of law de novo.  See United States v.

Young, 105 F.3d 1, 5 (1st Cir. 1997).  "Determinations of probable

cause and reasonable suspicion, relevant to the constitutionality

of law enforcement seizures and arrests under the Fourth Amendment,

present mixed questions of law and fact which we review de novo." 

Id.

          A.  The Pat-Down Search

          The Fourth Amendment guarantees "[t]he right of the

people to be secured in their persons, houses, papers, and effects,

against unreasonable searches and seizures . . . ."  U.S. Const.

amend. IV.  "'[S]earches and seizures conducted outside the

judicial process, without prior approval by judge or magistrate are

per se unreasonable under the Fourth Amendment -- subject only to

a few specially established and well delineated exceptions.'" SeeUnited States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994) (quoting

Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)).  One such

exception was recognized in Terry v. Ohio, 392 U.S. 1 (1968), in

which the Supreme Court held:

          [W]here a police officer observes unusual

          conduct which leads him reasonably to conclude

          in light of his experience that criminal

          activity may be afoot and that the persons

          with whom he is dealing may be armed and

          presently dangerous, . . . and where nothing

          in the initial stages of the encounter serve

          to dispel his reasonable fear for his own or

          others' safety, he is entitled for the

          protection of himself and others in the area

          to conduct a carefully limited search of the

          outer clothing of such persons in an attempt

          to discover weapons which might be used to

          assault him.



Id. at 30.

          Proctor contends that Officer Campbell lacked a

reasonable suspicion to conduct a Terry frisk.  Relying

substantially on Ybarra v. Illinois, 444 U.S. 85 (1979), appellant

avers that the officer had "no reason to believe [Proctor] had

committed, was committing, or was about to commit any offense under

state or federal law."  Id. at 91.  In Ybarra, the Supreme Court

held that although a search warrant issued upon probable cause gave

police the authority to search the premises of a small public

tavern and to search the bartender for narcotics, a pat-down search

of a tavern patron, Ventura Ybarra, was not constitutionally

permissible where there was no reasonable belief that he was

involved in any criminal activity or that he was armed or

dangerous.

          As the Ybarra court noted, "[w]here the standard is

probable cause, a search or seizure of a person must be supported

by probable cause particularized with respect to that person."  Id.

at 91.  Likewise, the Terry frisk of appellant must be supported by

a reasonable suspicion particularized with respect to Proctor.  We

find that the facts surrounding Proctor's encounter with the

officer gave rise to a reasonable belief that a pat-down search was

warranted.  Officer Campbell was alone in a remote location,

accessible only by climbing two hundred steps, with a package

containing five pounds of marijuana nearby.  His two fellow

officers had just left the house in pursuit of an individual who

had fled into the woods.  Proctor and his companion arrived at the

residence, where a search warrant was being executed, within

fifteen minutes of the controlled delivery of marijuana.  Unlike

the defendant in Ybarra who was a customer in a public tavern,

Proctor entered the grounds of a private residence.  It is

reasonable to infer that Proctor and his friend were prospective

buyers or otherwise connected with the distribution of the

marijuana. 

          In the face of two individuals who were conceivably

involved in illegal drug trafficking, Officer Campbell, as the only

officer on the scene, had a legitimate concern for his personal

safety.  In particular, the bulge that the officer observed in

Proctor's jacket, when viewed in light of the other details

surrounding the encounter, permitted a reasonable inference that

appellant was armed and dangerous.  Proctor argues that the

officer's testimony suggests that he would have searched the two

individuals even in the absence of a noticeable bulge.  However, we

need not concern ourselves with what would have happened under

different circumstances, but only with what actually happened. 

Moreover, in assessing a Fourth Amendment challenge, we consider

the objective reasonableness of an individual officer's conduct

rather than that officer's actual subjective motivations.  SeeWhren v. United States, 517 U.S. 806, 814 (1996) ("[T]he fourth

Amendment's concern with 'reasonableness' allows certain actions to

be taken in certain circumstances, whatever the subjective

intent.").  We rule that, under the totality of the circumstances,

the officer's pat-down search of Proctor did not violate the Fourth

Amendment.

          B.   The Seizure of the Marijuana

          Proctor argues that, even if the police had a reasonable

suspicion to conduct a search, the district court erred in ruling

that the officer, upon patting down the defendant, made an

immediate determination that the bulge was in fact a glassine bag

containing marijuana, and that it was reasonable for the officer to

remove the item from Proctor's jacket.  Under the "plain-view"

doctrine, during a lawful search, police may seize an object in

plain view without a warrant if "its incriminating character is

immediately apparent . . . ."  Minnesota v. Dickerson, 508 U.S.

366, 375 (1993).  Similarly, the "plain-feel" doctrine permits an

officer who "lawfully pats down a suspect's outer clothing and

feels an object whose contour or mass makes its identity

immediately apparent" to seize the contraband.  Id.  We review a

finding that the incriminating nature of an object was immediately

apparent from a plain feel for clear error.  See United States v.

Schiavo, 29 F.3d 6, 9 (1st Cir. 1994).

          We hold that the seizure of the glassine bag of marijuana

from Proctor's jacket falls within the scope of the plain-feel

doctrine.  In Schiavo, this court upheld the district court's

suppression of evidence seized during a pat-down search because the

state trooper conducting the search indicated that only after he

had taken a paper bag from the defendant's jacket and examined its

contents was he able to determine that the bulge was contraband. 

See 29 F.3d at 9.  In this case, the district court found that

Officer Campbell, upon feeling the bulge, immediately recognized it

as a bag containing marijuana.  The Dickerson court noted:

          Terry itself demonstrates that the sense of

          touch is capable of revealing the nature of an

          object with sufficient reliability to support

          a seizure.  The very premise of Terry, after

          all, is that officers will be able to detect

          the presence of weapons through the sense of

          touch and Terry upheld precisely such a

          seizure.



508 U.S. at 376.  Officer Campbell testified that he was

consistently able to determine the feel of marijuana from

conducting numerous pat-downs of suspects.  It is important to note

that the officer was conducting the frisk at a residence where he

had just delivered five pounds of marijuana.  Under these

circumstances, we find no clear error.

          While the defendant argues that the evidence should be

excluded under Dickerson, Officer Campbell did not engage in a

"continued exploration of respondent's pocket after having

concluded that it contained no weapon," id. at 378, as the officer

in Dickerson did.  Instead, he immediately determined the contents

of the bulge after a more cursory feel.  Proctor also alleges that

clear error resulted from the district court's oral ruling that the

officer had a reasonable basis to perform the pat-down "given the

circumstances surrounding the pat-down for weapons and/or

contraband."  Appellant asserts that the district court found

Officer Campbell's continued exploration of the bulge with his

fingers permissible because of its mistake with respect to the

scope of Terry, which allows only a frisk for weapons.  We reject

this argument outright.  It is clear from the transcript of the

hearing on Proctor's suppression motion as well as the district

court's written order that the basis of its decision not to

suppress the drug evidence was the plain-feel doctrine in Dickersonrather than the scope of Terry.  In other words, the district court

relied on the fact that the identity of the bulge was immediately

apparent to Officer Campbell rather than on its belief that Terryallows a pat-down for contraband.  Accordingly, the district court

properly denied Proctor's motion to suppress.

          Having determined that the search and seizure at issue

was constitutionally permissible, we need not reach appellant's

argument that any evidence obtained from the subsequent search of

Proctor's business premises should be suppressed as  fruit of the

poisonous tree."

                         III.  CONCLUSION

          For the foregoing reasons, we affirm the district court's

order denying defendant's suppression motion.