United States v. Villanueva

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-1502

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   JOSE VILLANUEVA,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Walter Jay Skinner, U.S. District Judge]
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                                        Before

                               Torruella, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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Edward  D.  Entine  with whom  Edward  A.  Gottlieb  and  Coyne  &
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        Gottlieb were on brief for appellant.
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            Timothy Q.  Feeley, Assistant United States Attorney, with whom A.
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        John Pappalardo, United States Attorney, was on brief for appellee.
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                                   February 3, 1994
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ALDRICH,  Senior  Circuit  Judge.   Defendant  Jose
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            Villanueva  pleaded  guilty  to  possessing a  firearm  after

            having been convicted of a felony, 18 U.S.C.   922(g)(1), but

            subject to  the right  to appeal the  propriety of  the Terry
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            type stop and  search that had discovered the gun.1   Fed. R.

            Crim. P.  11(a)(2).  In  denying the motion to  suppress, the

            district court stated that it  believed the testimony of  the

            government witness, Anderson,  and that it took  into account

            the nature of the area and the history of volatile conduct in

            that particular station and concluded that the temporary stop

            and pat search was reasonable under all of the circumstances.

            We affirm.

                      Anderson  testified that  he and  another uniformed

            officer  of the  Massachusetts  Bay Transportation  Authority

            (MBTA) were manning a directed patrol of the Roxbury Crossing

            MBTA Station.  According to him, "Directed patrol is the time

            of  a day  that is  targeted for  high visibility  because of

            particular instances that  have happened in a  certain area."

            The officers placed  themselves inside the turnstiles  on the

            upper level, near  the head of the stairs  and escalator from

            which  they could  look  down  and see  almost  all that  was

            below  -- a  single platform  flanked  by an  inboard and  an

            outboard  line.  Anderson testified that several hundred high

            school students come through  there a day, and at the time in

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            1.  Terry v. Ohio, 392 U.S. 1 (1968).
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question a couple of hundred were boarding an outbound train.

            "We  observed  two   young  males  acting  in   a  disorderly

            manner. . . .   [T]hey were banging on the  train windows and

            giving the  other students  the middle  finger and  they were

            becoming quite loud . . . pounding against the  windows . . .

            There  were obscenities."  Defendant wore a hooded sweatshirt

            just over  the belt and a goosedown type of coat hanging past

            his knees  that could conceal a  weapon.  We had  "decided to

            talk  to  the two  gentlemen  to  let  them know  that  their

            behavior was extremely  disorderly and we didn't  expect that

            from them."   "We intended to  talk with  them and tell  them

            that that type  of behavior was not appropriate;  don't do it

            again; leave the station."

                      When  defendant and friend  reached the top  of the

            escalator Anderson told  defendant -- whom they  had assigned

            to  him -- to step aside; that  he wanted to speak to him, to

            check  him,  at  which  point  defendant   looked  "extremely

            nervous."  When  Anderson patted his outside  clothing around

            the waist,  immediately feeling  a gun,  defendant sought  to

            flee, but Anderson restrained him.

                      In complaining that Anderson's  conduct invaded his

            Fourth Amendment rights  to be free of  unreasonable searches

            and  seizures defendant stresses  the following points.   His

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prior  conduct had  been, at  most, a  misdemeanor.2   He had

            left the site, and  had discontinued the conduct.  He bore no

            outward appearance of being armed.  The officer did not make,

            or propose  to make, an  arrest.  The pat-down  occurred even

            before the officer asked any questions.

                      Most  of these  matters are  easily  answered.   If

            there was  a shown need for a safety pat-down, the sooner the

            better.   Equally, we see no  relevance in the length  of the

            state  sentence  defendant  had exposed  himself  to.   While

            defendant's clothing was  in current style, and so  could not

            affirmatively  be held against  him, Ybarra v.  Illinois, 444
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            U.S. 85,  93 (1979),  its  capacity for  concealment was  not

            irrelevant.      Defendant's   other  points   require   more

            consideration.

                      This case,  of course,  involves two  events:   the

            stop,  and  the  search  (a pat-down  of  even  the slightest

            character being  a search).   Terry at 16.   The two  must be
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            construed together.

                           [I]n determining whether the seizure
                      and   search   were   "unreasonable"  our
                      inquiry  is  a  dual one  --  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 at 20.
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            2.  This  it clearly  was.   Mass.  G.L. c.  272   53  (1990)
            (". . . disorderly persons, disturbers of the peace . . .").

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This test should be applied in both directions.  An

            officer might wish to stop a pedestrian from crossing against

            the light.  Should he not refrain  from doing so, for lack of

            relative importance,  if the pedestrian's  general appearance

            made  him  fear that  his  safety  might  be involved  if  he

            accosted him?  Here the need of accosting justified the stop;

            even if a search would be in order.  It was highly desirable,

            if  not  the duty,  of  the  patrol  officers to  make  their

            presence felt and warn against future misbehavior even though

            doing so, in  the officers' opinion, would call  for a safety

            search.    Our  sole  question is  the  correctness  of  that

            opinion:     "[W]hether  a  reasonably  prudent  man  in  the

            circumstances  would  be  warranted in  the  belief  that his

            safety or that of others was in danger."  Terry at 27.
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                      The district court spoke, correctly, of the history

            of the area, confirmed by the very fact that the MBTA felt it

            advisable to provide a  special patrol.  The court  doubtless

            noted the provocative nature of defendant's  conduct.  With a

            couple of hundred  students present there might well  be many

            who  would be  offended.   Was  he "emboldened"  by having  a

            weapon?  Cf. United States v. Wilkinson, 926 F.2d 22, 25 (1st
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            Cir.), cert. denied, 111 S. Ct. 2813 (1991) (concealed weapon
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            may embolden).

                      For the words  "reasonably" and "circumstances"  an

            important consideration is the calendar  -- the times.   With

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the plethora of  gun carrying, particularly by the  young, we

            must  have  sympathy,  to an  extent,  with  police officers'

            apprehensions.  And, as there may be degrees of apprehension,

            so  may there be degrees  of invasion upon  privacy.  We will

            not overrule the district court in this case, but do note the

            question extremely close.   Also, we  remind police that  the

            character  of the  neighborhood  does  not provide  automatic

            permission, Brown  v. Texas, 443  U.S. 47 (1979);  every case
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            must  be  considered  on its  own  reasons  for suspicion  of

            danger.   United  States v.  Stanley, 915  F.2d 54  (1st Cir.
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            1990).

                      A  word as to  defendant's contention that,  on the

            basis of  Anderson's testimony,  he had  two objectives.   In

            addition  to lecturing defendant to keep  away and not repeat

            his offense, for which he felt the need of protecting himself

            and others,  Anderson intended  to pat  defendant down  based

            simply on  his conduct  in disturbing the  peace.   The fact,

            however, that he had this additional purpose did not, even if

            improper,  destroy the  validity of  the  one that  the court

            relied on.   We need not,  accordingly, evaluate it.   At the

            same time, we cannot resist  remarking that it comes with ill

            grace  from someone engaged in affronting his fellow citizens

            wholesale, as was  this one, to claim that  a pat-down of his

            outer clothing was  a "serious intrusion upon the sanctity of

            [his] person, which may inflict  great indignity."  Terry  at
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17.  Cf. Curley v. Curtis Pub. Co., 48 F.  Supp. 27 (D. Mass.
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            1942) (plaintiff claiming emotional suffering from defamation

            can be shown accustomed to abuse others).

                      Affirmed.
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