United States v. Vincent Anthony Magda

547 F.2d 756, 1976 U.S. App. LEXIS 5726
CourtCourt of Appeals for the Second Circuit
DecidedDecember 22, 1976
Docket238, Docket 76-1298
StatusPublished
Cited by110 cases

This text of 547 F.2d 756 (United States v. Vincent Anthony Magda) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vincent Anthony Magda, 547 F.2d 756, 1976 U.S. App. LEXIS 5726 (2d Cir. 1976).

Opinions

VAN GRAAFEILAND, Circuit Judge:

In an indictment filed in the Southern District of New York on September 24, 1975, Vincent Magda was charged with bank robbery and with assault committed during the course of the robbery. Thereafter, District Judge Robert L. Carter granted defendant’s pretrial motion to suppress evidence obtained as a result of an allegedly unlawful seizure of his person. United States v. Magda, 409 F.Supp. 734 (S.D.N.Y.1976). In a subsequent order, Judge Carter denied in part a motion of the United States for modification of the scope of the evidence suppressed. The United States has appealed from both orders.

On September 5, 1975, New York City Policeman Saverio Alesi was patrolling in uniform on Eighth Avenue between 42d and 45th Streets. At approximately 3:00 P.M. he observed appellee Magda talking with another man on the north side of 43d Street just west of Eighth Avenue. They were about thirty to thirty-five feet from Alesi, who was standing on the southwest corner of the intersection.

As Alesi watched the two men, he saw them exchange something. Although he could not see exactly what had changed hands, he did see that each man gave and received something simultaneously. After the exchange, the unidentified participant looked in the officer’s direction. Immediately after doing so, he turned away in a “rapid motion” and proceeded west on 43d Street. Meanwhile, Magda crossed 43d Street at an angle and started down Eighth Avenue toward 42d Street. As he passed, Alesi tapped him on the shoulder and asked him to stop. Magda turned to face Alesi and slowed his pace but continued down Eighth Avenue, walking backwards. The two men proceeded in this fashion for several steps, covering about ten feet before they both stopped.

Alesi inquired about what had taken place on 43d Street, and at first Magda said that nothing had happened. When asked a second time, Magda replied, “All right. I bought a marijuana cigarette for a dollar”, and produced the cigarette from his inside coat pocket. Alesi placed him under arrest and walked him back to 43d Street in a vain attempt to find the other man. Alesi then searched Magda and, upon discovering an unloaded handgun and a robbery demand note,1 took him to the police station and booked him on gun and drug charges.2 Subsequent investigation by the FBI linked the note with a robbery at the United Mutual Savings Bank in New York City and resulted in the instant indictment.

Judge Carter held that, if the police officer’s stopping of Magda was lawful, the arrest and search which followed the production of the marijuana were also lawful. With this, we agree. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Relying largely on New York law, [758]*758he concluded, however, that the original stop constituted an unreasonable seizure of defendant’s person. With this, we disagree.

The reasonableness of Alesi’s conduct must be determined by balancing the need for the stop against the gravity of the intrusion which the stop entailed. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry Court found that the governmental interest in crime prevention and detection would permit a police officer in appropriate circumstances to “approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22, 88 S.Ct. at 1880. This principle was reaffirmed by the Court in Adams v. Williams, 407 U.S. 143,145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Relying on Terry and Adams, the Supreme Court held explicitly in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) that probable cause was not required to justify a brief investigative stop of a car suspected of transporting illegal aliens. The Court said that a reasonable suspicion that the vehicle contained illegal aliens would support this “minimal intrusion”. Id. at 881, 95 S.Ct. 2574. The Second Circuit has interpreted the above cases as authorizing brief investigative stops, of the type at issue here, based on reasonable suspicion. See Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286 (2d Cir. 1975); United States v. Salter, 521 F.2d 1326 (2d Cir. 1975); United States v. Santana, 485 F.2d 365 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490 (1974); United States v. Riggs, 474 F.2d 699 (2d Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973).

In applying this test, an investigative stop will be found constitutionally permissible if “the police officer [can] point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880. See United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. 2574. Under the circumstances present here, Alesi’s stop of Magda was reasonable.

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. Hall, 525 F.2d 857, 859 (D.C.Cir. 1976). Alesi knew that the area where he first observed Magda had a high incidence of narcotics dealing. A map in his precinct house designated 43d Street between Eighth and Ninth Avenue as a “narcotics prone location”. McCaffrey Park, which is approximately 100 to 125 feet west of where the exchange took place, is particularly notorious as a center for drug traffic. Alesi testified that the park was under 24-hour surveillance. The reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely. See United States v. Brignoni-Ponce, supra, 422 U.S. at 884-85, 95 S.Ct. 2574. United States v. Hall, supra, 525 F.2d at 859.

Judge Carter found that Alesi had no “extraordinary skill” with regard to street arrests for narcotics. We are not prepared to hold, however, that “extraordinary skill” is the sine qua non of every constitutional police inquiry. Alesi had eleven years of experience as a policeman. He had been a foot patrolman for three and a half years and had made street arrests for narcotics before. Although he had made no prior narcotics arrests at the intersection in question during the six months he had been patrolling the Eighth Avenue area, he had seen other officers do so. The circumstances before Alesi “are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training”, United States v. Hall, supra, 525 F.2d at 859; cf. United States v. Wabnik,

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Bluebook (online)
547 F.2d 756, 1976 U.S. App. LEXIS 5726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vincent-anthony-magda-ca2-1976.