
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1912                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                   KENNETH SCHIAVO,                                 Defendant-Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                _____________________               George W. Vien, Assistant  United States Attorney, with whom               ______________          A. John  Pappalardo,  United  States  Attorney,  and  Geoffrey E.          ___________________                                   ___________          Hobart,  Assistant  United States  Attorney,  were  on brief  for          ______          appellant.               Paul F. Markham for appellee.               _______________                                 ____________________                                    July 13, 1994                                 ____________________                    TORRUELLA,   Circuit  Judge.    In  this  interlocutory                                 ______________          appeal,  the government  challenges  the  district court's  order          suppressing evidence seized during the course of a  motor vehicle          stop.  We affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    Kenneth Schiavo, Howard Winter, and Gennaro Farina were          the subject of  a drug  investigation by federal  agents and  the          Massachusetts  State Police.   As part of  the investigation, the          government provided  a confidential informant ("CI")  with $9,000          in government funds in a White New Balance bag to be used for the          purchase of  drugs.1  On November  4, 1991, the CI  met Winter at          the  Centurian Pub  in  Sutton, Massachusetts,  and gave  him the          $9,000 as partial payment  for a kilogram of cocaine  that Winter          had delivered on November 1,  1991.  After Winter took the  cash,          agents followed him with  the intention of recovering the  money.          Agents also followed Schiavo,  whom they believed to  be Winter's          source of cocaine.                    After Winter  left the  Centurian Pub,  he went  to his          home in the Worcester area,  then to Pudgie's Lounge ("Pudgie's")          in  Worcester.  He then  left Pudgie's, went  home, and returned.          After  exiting Pudgie's the second time, he went to the Chandlery          Pub in Chelsea.  Prior to Winter's  arrival at the Chandlery Pub,          agents  had  followed  Schiavo  to this  location.    When Winter          arrived, Schiavo's  vehicle was parked outside.   Winter remained                                        ____________________          1  Prior to providing the CI with this money,  agents photocopied          each  bill  in order  to memorialize  the  serial numbers  of the          currency to be transferred to Winter.                                         -2-          in  the pub for approximately twenty minutes and then departed in          his  vehicle.   Approximately  five  minutes  after Winter  left,          Schiavo came out  of the  restaurant, got into  his vehicle,  and          exited the parking lot.                    Trooper  Thomas P.  Duffy  of the  Massachusetts  State          Police  and several  other investigating  agents had  developed a          strategy to recover the  $9,000.  Agents expected Winter  to meet          with Schiavo to give him the money that he had just received from          the CI.  In the event  that Schiavo met with Winter, agents would          stop Schiavo's car.                    In  accordance with this  plan, Trooper  Duffy followed          Schiavo in  an unmarked cruiser  when Schiavo left  the Chandlery          Pub.   As  Schiavo  drove onto  Broadway  Street  in  Somerville,          Massachusetts,  Trooper   Duffy,  who  was  dressed  in  uniform,          signalled  to  Schiavo to  pull over.    Schiavo pulled  into the          parking lot of  a nearby supermarket, parked, and got  out of his          vehicle.   Trooper Duffy asked Schiavo to produce his license and          registration.2    When  Schiavo  stood up  after  retrieving  the          registration from the glove  compartment, Trooper Duffy noticed a          large bulge  protruding from the  left side of  Schiavo's jacket.          Trooper  Duffy immediately  asked  Schiavo if  he  had a  weapon.          Schiavo responded that  he did  not.   Pointing to  the bulge  in          Schiavo's jacket, Trooper Duffy asked  Schiavo, "Is this all  you          here?,"  to which  Schiavo  responded, "Mostly."   Trooper  Duffy                                        ____________________          2  Trooper  Duffy was  wearing a transmitting  device during  his          encounter with Schiavo.                                         -3-          again asked Schiavo  about the  nature of the  bulge and  Schiavo          informed  him that it  was a bag.   At that  point, Trooper Duffy          conducted a pat frisk of Schiavo.                    After  Trooper Duffy completed  the pat  frisk, Schiavo          began to unzip  his jacket in an apparent effort  to show Trooper          Duffy that  he was not  carrying a weapon.   Without being asked,          Schiavo stuck his hand  inside his coat.  Concerned  that Schiavo          was indeed armed, Trooper Duffy immediately instructed Schiavo to          raise  his hands.    Trooper Duffy  noticed  a brown  bag  inside          Schiavo's jacket and  asked what it  contained.  Schiavo  stated,          "Just open my coat and take it."  Schiavo then told Trooper Duffy          that the bag contained approximately $11,000.                    When Trooper Duffy inspected  the contents of the paper          bag, he found that it contained the white New Balance plastic bag          that the  CI had  given to  Winter  earlier.   The bag  contained          $8,500.  After discovering this money, Trooper Duffy seized money          from  Schiavo's shirt  pocket and  the two  front pockets  of his          pants.   In  total, Trooper  Duffy seized  $12,500 from  Schiavo,          including the $9,000 given to Winter by the CI.                    After   his  indictment,  Schiavo  filed  a  motion  to          suppress the currency as evidence.  The district court found that          because the incriminating nature of the bulge in Schiavo's pocket          was  not immediately apparent  to Trooper Duffy  upon his initial          pat  frisk, the  "plain feel"  doctrine espoused in  Minnesota v.                                                               _________          Dickerson, 113 S. Ct. 2130 (1993), did not justify seizure of the          _________          money  during the  Terry protective  patdown  search.   The court                             _____                                         -4-          further found that Trooper Duffy at no time had probable cause to          believe that Schiavo possessed the serialized money and therefore          Trooper Duffy did  not have  a justification to  seize the  money          based on exigent circumstances.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We  review  the  district  court's  findings  of  fact,          following the  suppression hearing,  including mixed findings  of          fact  and  law, for  clear error.    United States  v. Rodr guez-                                               _____________     __________          Morales,  929  F.2d 780,  783  (1st Cir.  1991).    We afford  no          _______          deference, however,  to findings of the district  court under the          wrong legal standard.  Id.                                 __                                 PLAIN FEEL DOCTRINE                                 PLAIN FEEL DOCTRINE                                 ___________________                    "[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          specifically   established   and  well   delineated  exceptions."          Minnesota  v. Dickerson, 113  S. Ct. 2130,  2135 (1993) (internal          _________     _________          citations and quotations omitted).   One exception, recognized in          Terry v. Ohio, 392 U.S. 1 (1968), is that "where a police 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."  Id.  (internal citations  and quotations  omitted).                        __          Under Terry, an officer  may also conduct a patdown  search where                _____          the  officer is justified in  believing that the  person is armed                                         -5-          and  dangerous to the officer or others.   Terry, 392 U.S. at 24.                                                     _____          This  protective  search  must  be  "limited  to  that  which  is          necessary for the  discovery of  weapons which might  be used  to          harm  the officer  or others  nearby."  Id.  at 26;  Dickerson at                                                  __           _________          2136.                    During  a lawful Terry-type search, police officers may                                     _____          seize an  object in "plain view"  without a warrant  if they have          probable  cause to  believe it  is contraband  without conducting          some further  search of  the object,  i.e., if  its incriminating          character  is  "immediately  apparent."   Dickerson  at  2136-37.                                                    _________          Likewise, the "plain  feel" doctrine permits an  officer to seize          an object, if its incriminating character is immediately apparent          during a lawful protective pat-search.  Id. at 2137-38.                                                  __                    In  the present case, there is no doubt that the police          were justified under Terry  in stopping Schiavo and frisking  him                               _____          for weapons.  The issue we must therefore address is "whether the          officer who  conducted the  search was acting  within the  lawful          bounds marked  by Terry at the  time he gained  probable cause to                            _____          believe"  that the  bulge  in Schiavo's  jacket was  contraband.3          Id. at 4548.  The district court found that he did not.  We quote          __          from the district court's Memorandum and Order:                      At the suppression hearing, Trooper Duffy                      repeatedly asserted that  he did not know                      what  the bulge  contained even  after he                      had conducted the pat frisk.  In fact, he                      indicated  that only  after he  had taken                      the  bag of  money from  Schiavo's jacket                                        ____________________          3  The government  does not assert that the  serialized money was          in "plain view" at the time of the search.                                           -6-                      and examined its contents  was he able to                      determine  what the  bulge was.   Because                      Trooper Duffy did not know what the bulge                      was  after  the  initial  pat  frisk  and                      because he  needed to conduct  a further,                      unwarranted  search of the  bulge and its                      contents  to determine  what it  was, the                      "plain   feel"   doctrine   espoused   in                      Dickerson does not apply.                      _________                    The  district court properly applied the legal standard          described in Dickerson.  The district court's conclusion that the                       _________          incriminating nature  of the  bulge in Schiavo's  pocket was  not          "immediately apparent"  is not clearly erroneous.   Trooper Duffy          "overstepped the bounds of  the strictly circumscribed search for          weapons  allowed under  Terry."   Id. at  4548.   Trooper Duffy's                                  _____     __          continued exploration of the brown paper bag in  Schiavo's pocket          "after having concluded that it contained no weapon was unrelated          to the  sole justification of the  search under Terry: .  . . the                                                          _____          protection  of the police officer's  and others nearby."   Id. at                                                                     __          4548 (internal citations and quotations omitted).                       PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES                       PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES                       ________________________________________                    The  Supreme  Court  has  held that  in  light  of  the          exigency arising out  of the likely  disappearance of a  vehicle,          warrantless searches of  a vehicle do not  contravene the Warrant          Clause  of the Fourth Amendment when such searches are based upon          probable cause to believe that the vehicle contains evidence of a          crime.   California v. Acevedo, 500 U.S. 565, 569 (1991); Carroll                   __________    _______                            _______          v. United States, 267  U.S. 132, 158-159 (1925).  In Acevedo, the             _____________                                     _______          Supreme Court extended this  exception to containers found within          a movable vehicle.  The Court held that where police had probable                                         -7-          cause to  search a  container, in that  case, a  brown paper  bag          located in the  trunk of  the car, the  Fourth Amendment did  not          require "the  police to obtain  a warrant to  open the sack  in a          movable vehicle simply because they lack probable cause to search          the entire car."  Acevedo, 500 U.S. at 573.                            _______                    Although the  government  does  not  contend  that  the          currency  was   seized  pursuant  to  a   vehicular  search,  the          government does  maintain  that exigent  circumstances  justified          seizure  of the  money without a  warrant.   The search  of one's          person  is more intrusive on  the rights protected  by the Fourth          Amendment than the search  of an automobile.  Cardwell  v. Lewis,                                                        ________     _____          417  U.S.  583,  590  (1974) (citing  Almeida-S nchez  v.  United                                                _______________      ______          States,  413  U.S. 266,  179  (1973)  (Powell, J.,  concurring)).          ______          Hence, circumstances which could  justify a warrantless search of          an automobile  will not necessarily justify  a warrantless search          of a person.   In the present case, we  need  not reach the issue          of whether exigent circumstances justified the warrantless search          of the paper bag located in Schiavo's jacket because we find that          the district court did not err  in holding that the police lacked          probable cause to  believe that Schiavo had  the serialized money          at the time of the search at issue in this case.                    "In  enforcing  the   Fourth  Amendment's   prohibition          against  unreasonable  searches  and   seizures,  the  Court  has          insisted  upon probable  cause  as a  minimum  requirement for  a          reasonable search  permitted by  the Constitution."   Chambers v.                                                                ________          Maroney,  399 U.S.  42,  51 (1970);  see  also United  States  v.          _______                              _________ ______________                                         -8-          Ramsey, 431  U.S. 606, 622 (1977) (vehicular  searches inside the          ______          country require probable cause).   Absent probable cause, exigent          circumstances would  not bring the warrantless  search of Schiavo          within the bounds of the Fourth Amendment.4                    The government challenges the district  court's finding          that at the  time of  the search, Trooper  Duffy lacked  probable          cause to believe that Schiavo possessed the serialized money.  In          its initial Memorandum and Order5 the district court stated:                      I note in passing that Duffy did not have                      probable cause to believe that  the money                      was in Schiavo's  possession.  More  than                      two  hours had  passed  between the  CI's                      delivery  of  the  money  to  Winter  and                      Winter's   arrival   at  the   Chandlery.                      During  this  time,  Winter   stopped  at                      several places,  at any  one of  which he                      could have  left the  money.   There  was                      therefore  not  even  probable  cause  to                      believe that  Winter had the money in his                      possession when he entered the Chandlery.                      Further, no  one ever saw  Winter deliver                                        ____________________          4   The government argues  that probable  cause developed  during          Trooper  Duffy's  encounter with  Schiavo.    This contention  is          without  merit.   This  argument overlooks  the district  court's          factfinding.  The district court  found that, "only after Trooper          Duffy  had taken  the  bag of  money  from Schiavo's  jacket  and          examined its contents  was he  able to determine  what the  bulge          was."   This is a fact-specific finding, well within the district          court's  ken.    Given   the  "greatly  circumscribed"  scope  of          appellate review  applicable to  such findings, United  States v.                                                          ______________          Rutkowski, 877 F.2d  139, 144 (1st Cir. 1989), we must accept it.          _________          Thus,  because Trooper  Duffy was  not  acting within  the lawful          bounds marked by Terry at the time he realized that  the bulge in                           _____          Schiavo's jacket  was either contraband  or evidence of  a crime,          the search that gave rise to this discovery does not satisfy  the          requirements of the  Fourth Amendment.   See Wong  Sun v.  United                                                   ___ _________     ______          States,  371  U.S.  471 (1963)  ("fruit  of  the  poisonous tree"          ______          doctrine).            5   Following  the  Supreme Court's  decision  in Dickerson,  the                                                            _________          district  court reconsidered  and  reaffirmed its  initial  Order          allowing Schiavo's motion to suppress the currency seized.                                          -9-                      any  money to  Schiavo at  the Chandlery.                      Duffy conceded that he had only a "hunch"                      that  Schiavo  had  the serialized  money                      when  he  left   the  Chandlery.[6]     I                      consequently find that prior  to stopping                      Schiavo,  Duffy's hunch  did not  rise to                      probable  cause  to believe  that Schiavo                      possessed   the    serialized   currency.                      Although  Duffy did not  conduct a search                      of  Schiavo's vehicle, I simply note that                      the evidence indicates that he would not,                      therefore,  have  had  probable cause  to                      support a warrantless search of Schiavo's                      vehicle.                    This  finding  by the  district  court  is not  clearly          erroneous.    We  therefore  affirm the  district  court's  order          suppressing  the evidence  seized  during the  stop of  Schiavo's          vehicle.                    Affirmed.                    ________                                        ____________________          6  In a footnote the district court stated that  "This hunch only          extended  to the money being generally inside the vehicle.  Duffy          admitted that he  never anticipated  that the money  would be  on          Schiavo's person."                                         -10-
