
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1502                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JOSE VILLANUEVA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Edward  D.  Entine  with whom  Edward  A.  Gottlieb  and  Coyne  &            __________________             ____________________       ________        Gottlieb were on brief for appellant.        ________            Timothy Q.  Feeley, Assistant United States Attorney, with whom A.            __________________                                              __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   February 3, 1994                                 ____________________                      ALDRICH,  Senior  Circuit  Judge.   Defendant  Jose                                ______________________            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                                                                    _____            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                                            ____________________            1.  Terry v. Ohio, 392 U.S. 1 (1968).                _____    ____                                         -2-            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                                         -3-            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                                                 ______     ________            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                                          _____            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.            _____                                            ____________________            2.  This  it clearly  was.   Mass.  G.L. c.  272   53  (1990)            (". . . disorderly persons, disturbers of the peace . . .").                                         -4-                      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.                                                      _____                      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                     __  _____________    _________            Cir.), cert. denied, 111 S. Ct. 2813 (1991) (concealed weapon                   ____________            may embolden).                      For the words  "reasonably" and "circumstances"  an            important consideration is the calendar  -- the times.   With                                         -5-            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                        _____     _____            must  be  considered  on its  own  reasons  for suspicion  of            danger.   United  States v.  Stanley, 915  F.2d 54  (1st Cir.                      ______________     _______            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                                                                _____                                         -6-            17.  Cf. Curley v. Curtis Pub. Co., 48 F.  Supp. 27 (D. Mass.                 __  ______    _______________            1942) (plaintiff claiming emotional suffering from defamation            can be shown accustomed to abuse others).                      Affirmed.                      ________                                         -7-
