
USCA1 Opinion

	




          June 13, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2094                                    UNITED STATES,                                      Appellee,                                          v.                             JOSE A. BERNARDO-RODRIGUEZ,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                _____________________               Mar a  H.  Sandoval,  by   Appointment  of  the  Court,  for               ___________________          appellant.               Warren V zquez,  Assistant United States Attorney, with whom               ______________          Guillermo  Gil,  United  States  Attorney, and  Jos   A.  Quiles-          ______________                                  _________________          Espinosa, Senior Litigation Counsel, were on brief for appellee.          ________                                 ____________________                                 ____________________                    Per  Curiam.   Defendant-appellant  Jos   A.  Bernardo-                    Per  Curiam                    ___________          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                                      __________                    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.                                                           _____________          Sealey, 30 F.3d 7, 8 (1st Cir. 1994).  While  working at the Luis          ______          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-                                         -2-          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                                       ________                    As  explained above,  we review findings  of fact  on a                                        ____________________          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                                               _____________     ______          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                  __          magistrate  judge's  credibility   determinations  were   clearly          erroneous, we uphold his factual findings.                                         -3-          motion to suppress only for clear error.  Zapata, 18 F.3d at 975.                                                    ______          Notwithstanding  the deference  given to  factual determinations,          however, we review questions of law de novo.  Id.                                              __ ____   __                    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.                                  _____        ___ _____     ____          1,  23 (1968).    Bernardo-Rodr guez contends  that under  Terry,                                                                     _____          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                                                   _____          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                       _____          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                      __          which  is necessary for the  discovery of weapons  which might be                                         -4-          used to harm the officer or others nearby."  Id. at 26.                                                       __                    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                                          _____          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                      ______          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          __           ________    _______          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.                               __                    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                                  ______                                         -5-          recognized  that  an officer  need  not have  probable  cause for          certain  de   minimis  uses  of  force   incident  to  legitimate                   __   _______          investigatory stops.  Id.  In Zapata, we rejected the appellant's                                __      ______          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                                                                     __          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.                                                                __ _______          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               _____       ___ ______                         _____________          v. Willis,  967 F.2d 1120, 1223 (8th Cir. 1992) and Tom v. Voida,             ______                                           ___    _____          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.                                          ______                                         -6-
