United States Court of Appeals
For the First Circuit
No. 00-1104
UNITED STATES OF AMERICA,
Appellee,
v.
ANDRES CAMPA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Owen S. Walker, Federal Public Defender, with whom Stephanie
A. Jirard, Federal Defender’s Office, was on brief for
appellant.
Nadine Pellegrini, Assistant U.S. Attorney, with whom Donald
K. Stern, United States Attorney, was on brief for appellee.
December 12, 2000
COFFIN, Senior Circuit Judge. Appellant Andres Campa was
arrested when he went to retrieve a package of counterfeit alien
work permits ("green cards") at an apartment targeted by law
enforcement authorities because a series of suspicious packages
had been delivered there. He entered a conditional plea of
guilty to charges relating to the counterfeiting and fraudulent
use of various identification documents, reserving his right to
appeal the district court's denial of his motion to suppress all
evidence and statements obtained by authorities after his
arrest. See 18 U.S.C. §§ 1028(a)(1), (a)(5), 1546(a); 42 U.S.C.
§§ 408(a)(7)(c). Campa now brings that appeal, claiming that
the district court erred in failing to find that he was
unlawfully detained and searched upon entering the apartment.
Our review of the record and relevant case law persuades us that
the only Fourth Amendment violation that occurred — an improper
frisk — was unrelated to appellant's arrest and did not give the
government access to the incriminating evidence. We therefore
affirm the denial of appellant's suppression motion.
I. Factual Background
For nearly a year before March 1999, the United States
Postal Inspection Service had been investigating suspicious
Express Mail packages addressed to 74 Thornton Street in Revere,
Massachusetts. On March 19, Inspector Michael McCarran posed as
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a mailman and delivered the latest such package. Three other
law enforcement officers accompanied him, but initially remained
in the postal truck.1
A man later identified as Jose Bullon came to the door,
stated that he was the addressee, "Francisco Valencia," and
signed the name " Francis Palencia" on the delivery mail receipt.
McCarran then summoned the other officers. Bullon agreed to
speak with them and consented to the package being opened.
Inside were forty blank green cards. Bullon admitted that
Valencia was a fictitious name and that he was accepting the
package for a man he knew as "Gorrito." He described Gorrito as
a Hispanic male in his early twenties who usually wore a
baseball cap. Bullon reported that Gorrito paid him $50 per
package and that he previously had accepted about ten packages.
Bullon stated that Gorrito manufactured the fraudulent documents
in a nearby apartment on Highland Street. Expressing fear of
retaliation if Gorrito learned of his cooperation, Bullon
nonetheless disclosed that Gorrito was due at the Thornton
Street apartment at about 2 p.m. that day, and he agreed to go
with one of the officers to point out the Highland Street
apartment.
1
The others were Massachusetts State Trooper Mark Marron,
U.S. Customs Agent James Burke, and Revere Police Department
Detective Tony Arcos.
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At about 2:30 p.m., shortly after Bullon returned to the
Thornton Street location, Bullon and McCarran saw two Hispanic
males walking down the street toward the apartment. Bullon
identified one of the men, who was wearing a baseball cap, as
Gorrito. He later was identified as appellant Campa. Appellant
and the other man, Enrique Lara-Valirde, entered the apartment
without knocking and were confronted just inside the door by
three officers, who identified themselves, ordered the men to
face the hallway wall, and then conducted a pat-down search.
During the frisk of appellant, Trooper Marron took keys, a
beeper and a wallet from his pockets, dropping the items to the
floor as they were removed. Appellant and Lara-Valirde then
were escorted to the kitchen, where they sat down at a table.
McCarran gathered the items removed during the frisk and placed
them on the table.
At this point, the officers asked for identification. Lara-
Valirde admitted that he had no identification and was in the
United States illegally. Marron, a non-Spanish speaker,
attempted to communicate with appellant by saying the word
"identificacion" two or three times. In response, Campa took a
New Jersey driver's license from his wallet and handed it to the
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officer.2 Marron recognized the license as a counterfeit and
placed Campa under arrest. About one minute had elapsed since
the men entered the kitchen.
Campa, who spoke little or no English, was read Miranda
warnings in Spanish and immediately signed a Spanish-language
form waiving his rights. He acknowledged his involvement in
counterfeiting and consented to a search of his Highland Street
apartment. There, he identified keys to open the front door and
a locked closet. In the closet, officers discovered a
substantial quantity of counterfeit documents as well as
equipment for manufacturing false identification materials. A
short time later at police headquarters, Campa made additional
incriminating statements after again being advised of his
rights.
Appellant subsequently moved to suppress the counterfeiting
materials found in the Highland Street apartment and his
statements to authorities admitting culpability. He argued that
the officers did not have the requisite level of suspicion to
2 Campa testified at the suppression hearing that Trooper
Marron removed the license from his wallet without his consent,
but the district court "d[id] not find Campa credible on this
point." In the absence of clear error, we accept the district
court's factual findings, particularly with respect to the
credibility of witnesses. United States v. Forbes, 181 F.3d 1,
7 (lst Cir. 1999). We find no such error here and therefore
assume that Campa handed the license to Marron.
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justify the stop and pat-down search, that his arrest was
unlawful, and that his confessions and all physical evidence
seized should be suppressed as "fruit of the poisonous tree,"
Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
After a two-day evidentiary hearing, the district court
concluded that the officers had a sufficient basis to detain
Campa briefly for the purpose of exploring his relationship to
the counterfeit green cards, but that the accompanying frisk was
excessive in scope because the officers removed all items from
his pockets without regard to whether they might be weapons.
The court nonetheless refused to suppress any of the challenged
evidence on the theory that its discovery was inevitable given
the authority of the police to determine Campa's identity. The
court believed that, even with a more limited frisk, Campa
either would have provided the New Jersey license voluntarily,
or the officers could and would have searched him to obtain it.
On appeal, appellant renews his claim that the officers lacked
even the reasonable suspicion necessary to conduct an
investigatory stop authorized by Terry v. Ohio, 392 U.S. 1
(1968), and he maintains that the actions they took constituted
a de facto arrest that needed to be supported by the higher
standard of probable cause. He asserts that neither the record
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nor case law supports the district court's inevitable discovery
theory.
We review the district court's findings of fact for clear
error, but give de novo consideration to its legal conclusions.
United States v. Cruz, 156 F.3d 22, 26 (lst Cir. 1998). We will
uphold a district court's decision to deny a suppression motion
if the decision is supported by any reasonable view of the
evidence. United States v. McCarthy, 77 F.3d 522, 529 (lst Cir.
1996).
II. Discussion
This case requires us to examine closely two different
interactions, minutes apart, between law enforcement officers
and appellant. The first occurred in the hallway of the
Thornton Street apartment when officers stopped and frisked
appellant and Lara-Valirde immediately after their entry into
the apartment. The second occurred in the kitchen when the
officers demanded identification, prompting appellant to produce
the false New Jersey driver's license. Appellant contends that
the officers' conduct during the first encounter was unlawful,
and he asserts that the license and all other evidence and
statements subsequently obtained were fruits of that illegality.
He specifically maintains that the unlawful removal of his
wallet from his pocket in the hallway led to his turning over
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the phony New Jersey license and, consequently, to his arrest.
Though we agree that the pat-down was flawed, we disagree that
it tainted the second encounter. We begin our analysis by
reviewing relevant Fourth Amendment jurisprudence.
A. The Terry Stop-and-Frisk Standards
A warrantless search violates the Fourth Amendment unless
it falls within one of the few carefully limited exceptions to
that important constitutional protection. Minnesota v.
Dickerson, 508 U.S. 366, 372 (1993); United States v. Woodrum,
202 F.3d 1, 6 (lst Cir. 2000). A consensual search is one such
exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);
United States v. Forbes, 181 F.3d 1, 5 (lst Cir. 1999). Another
was recognized in Terry, which held that a police officer with
reasonable suspicion of criminal activity may detain a suspect
briefly for questioning aimed at confirming or dispelling his
suspicions. See Dickerson, 508 U.S. at 372-73; Woodrum, 202
F.3d at 6. The officer making the stop must possess "specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion."
Terry, 392 U.S. at 21; Woodrum, 202 F.3d at 6.
In addition to the stop for questioning, Terry permits a
pat-down search for weapons based on an objectively reasonable
belief that the suspicious individual is armed and presently
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dangerous. Dickerson, 508 U.S. at 373. Such a protective
search, designed to allow the officer to conduct his
investigation without fear of violence, must be "strictly
'limited to that which is necessary for the discovery of
weapons.'" Id. (quoting Terry, 392 U.S. at 26); see also Adams
v. Williams, 407 U.S. 143, 146 (1972). Typically, this will be
"a limited patting of the outer clothing of the suspect for
concealed objects which might be used as instruments of
assault." Sibron v. New York, 392 U.S. 40, 65 (1968). If the
frisk goes beyond what is necessary to determine if the suspect
is armed, its fruits will be suppressed. Dickerson, 508 U.S. at
373, 378-79; see also United States v. Schiavo, 29 F.3d 6, 9
(lst Cir. 1994) (affirming suppression where officer's continued
exploration of a bulging paper bag in suspect's pocket "'after
having concluded that it contained no weapon was unrelated to
the sole justification of the search under Terry'") (quoting
Dickerson, 508 U.S. at 378).
B. The Hallway Encounter
Appellant contends that the hallway encounter was not a
lawful Terry stop because it was not justified by sufficiently
concrete and reasonable suspicion of criminal activity. He
further argues that, in any event, the seizure and search
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exceeded the bounds of a permissible Terry stop and thus
constituted a de facto arrest unsupported by probable cause.
1. The Stop. We have little difficulty in concluding
that the hallway stop fit comfortably within the Terry
framework. The officers knew that a package containing
fraudulent documents had been delivered to the apartment and
that a series of similar deliveries had occurred over the last
year. Bullon reported that an individual known as Gorrito was
the intended recipient of the package that day and that he
previously had received about ten similar packages. Bullon
further disclosed that Gorrito, who customarily wore a baseball
cap, would be returning to the apartment at about 2 p.m.
Although Bullon's credibility was previously untested, the
officers had the opportunity to assess his truthfulness in an
extended face-to-face encounter, and they remained with him
until his information was partially corroborated by events.
Bullon's own admission of complicity, see, e.g., United States
v. Shaefer, 87 F.3d 562, 566 (lst Cir. 1996), and the risk of
police retaliation for giving false information, see
Commonwealth v. Melendez, 407 Mass. 53, 57, 551 N.E.2d 514, 516
(1990), added to the likelihood of his veracity. Consistent
with Bullon's report, appellant, wearing a baseball cap, arrived
at the apartment at about 2:35 p.m., and was identified by
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Bullon as he approached the building. These factual
circumstances, specifically pointing to appellant, gave
officers ample basis for a reasonable suspicion that he was
involved in illegal activity and justified a brief detention to
investigate whether those suspicions were correct.
2. The Detention. We also reject the contention that the
hallway encounter evolved into a de facto arrest. The detention
was brief — a few minutes from the time the men arrived in the
apartment until they were moved to the kitchen — and the
circumstances were nearly the least intrusive possible for a
stop and frisk. See, e.g., United States v. Sowers, 136 F.3d
24, 27 (lst Cir. 1998) (courts must examine the totality of the
circumstances "to locate a particular sequence of events along
the continuum of detentions"); see generally United States v.
Acosta-Colon, 157 F.3d 9, 14-15, 21 (lst Cir. 1998) (describing
distinctions between investigatory stops and more coercive
detentions); United States v. Zapata, 18 F.3d 971, 975 (lst Cir.
1994) (same). Although appellant emphasizes that the two men
raised their hands when asked to face the wall for the frisk,
this form of compliance with the officers' instructions does not
make the interaction tantamount to an arrest. The officers did
not display weapons, use handcuffs or exert any physical force
on the two men. Directing them to move the few steps from the
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hallway to the kitchen, presumably a larger space and thus a
more natural setting for conversation, in all likelihood defused
some of the tension surrounding the hallway frisk; it certainly
was not a dramatic change in the officer-suspect relationship
that converted a Terry stop into an arrest.
It may be that the restriction on appellant's liberty felt
more severe in this private apartment than it would have felt in
an open public setting, see Zapata, 18 F.3d at 975 (among
factors indicating Terry detention rather than de facto arrest
was that encounter occurred in a public place), but appellant
was neither isolated nor in a law-enforcement environment, and
his movements were restrained no more than was minimally
necessary for officers to conduct investigative questioning. We
note that, in addition to the two newly arrived suspects and the
law enforcement officers, there were four other individuals in
the apartment. Cf. Florida v. Royer, 460 U.S. 491 (1983)
(suspect placed, with two officers, in a closet-sized room
approximately 40 feet from the original encounter); Acosta-
Colon, 157 F.3d at 16 (suspect was handcuffed and taken to an
interrogation room in a secured area "much farther than 40 feet"
from where he was stopped). The circumstances of the hallway
inquiry, conducted very quickly in this non-custodial setting,
fell well short of an arrest.
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3. The Pat-down Search. We agree with appellant and the
district court, however, that the pat-down search conducted by
the officers exceeded the permissible scope of a Terry
detention. We are satisfied with the officers' judgment that a
pat-down was justified, in light of Bullon's expression of
concern for his safety if he betrayed Gorrito and the
uncertainties of confronting the two men in an apartment where
at least three other individuals of unknown allegiance were
present. The officer who frisked appellant, Trooper Marron,
acknowledged, however, that he made no attempt to distinguish
between bulging items that could be weapons and other types of
concealed objects, reaching into appellant's pockets whenever he
felt a protrusion and emptying all items onto the floor. If
this indiscriminate removal of items embraced objects that were
readily identifiable by touch as non-weapons, then the further
invasion of appellant's privacy occasioned by removing them from
his pockets was unnecessary and thus unlawful. See Terry, 392
U.S. at 29 (protective search for weapons "must . . . be
confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for
the assault of the police officer"); 4 Wayne R. LaFave, Search
and Seizure § 9.5(c) (3d ed. 1996) (discussing "what tactile
sensations produced by the pat-down will justify a further
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intrusion into the clothing of the suspect"); cf. Dickerson, 508
U.S. at 375-76 ("plain feel" doctrine allows seizure of
contraband detected during weapons frisk when "a police officer
lawfully pats down a suspect's outer clothing and feels an
object whose contour or mass makes its identity immediately
apparent").
Although we recognize that searching by means of a pat-down
is not an exact science, the government does not even argue that
Trooper Marron thought appellant's wallet — the item
particularly at issue here — could be a weapon. He simply
removed every bulging object as he searched, undoubtedly a
convenient method for detecting weapons, but one that goes
beyond the limited invasion of privacy authorized by Terry and
its progeny. That the items were not actually "seized" and
retained by the officers — and, indeed, might have been
returned to appellant had he asked — minimizes the violation but
does not erase it. We therefore conclude that appellant was
subjected to an unlawful frisk.
C. The Kitchen Encounter
We differ with appellant, however, in our assessment of the
impact of that constitutional violation.3 He claims that, once
3
The district court relied on the "inevitable discovery"
doctrine to conclude that the officers would have obtained the
license regardless of the nature of the frisk, holding that the
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the officers had removed the wallet from his pocket and placed
it within sight on the kitchen table, he was deprived of the
choice to withhold its contents and thus was coerced into
turning over the license. The illegality of the pat-down,
however, rests on the assumption that the officers
unquestionably knew that certain of the items they removed from
his pockets were not weapons. The wallet, in particular, was
most easily identified as a non-weapon, and was almost certain
to have been accurately recognized by feel. We are unpersuaded
that the difference between the officers' virtual certainty that
he carried a wallet and the wallet's presence on the kitchen
table is so significant that appellant's yielding of the license
in the former case would be voluntary while in the latter it
would be involuntary. Indeed, we reached a similar conclusion
as to the coerciveness of taking a wallet in Forbes, 181 F.3d at
6 n.6, where we rejected the contention that an officer's
illegal removal of a wallet during a Terry frisk "would so
overbear [the suspect's] will that his failure to withdraw his
consent [to a search] should be deemed involuntary." Here,
officers could have taken the license from appellant even if he
had refused to produce it voluntarily. We have been pointed to
no federal cases supporting such an "identity search" exception
to the Fourth Amendment's warrant requirement, but find it
unnecessary to consider the question any further because of our
conclusion that appellant turned over the license voluntarily.
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where the officers never, in fact, took possession of the wallet
– placing it on the floor and then on the table – we are
similarly unconvinced that the exposure of the wallet influenced
appellant's decision to respond to the demand for
identification.
This is not to say, of course, that the circumstances were
entirely free of compulsion. The reality is that police
officers seeking to obtain information from a suspect in a Terry
stop are likely — and expected — to use one or more techniques
with coercive impact, see Kolender v. Lawson, 461 U.S. 352, 364,
366 (1983) (Brennan, J., concurring); Zapata, 18 F.3d at 976-77,
and they are permitted to ask their questions "in a way
calculated to obtain an answer," Kolender, 461 U.S. at 366
(Brennan, J., concurring). Although officers "may not compel an
answer," id. (emphasis in original); McCarthy, 77 F.3d at 531,
[d]uring such an encounter, few people will ever feel
free not to cooperate fully with the police by
answering their questions. . . . Our case reports are
replete with examples of suspects' cooperation during
Terry encounters, even when the suspects have a great
deal to lose by cooperating.
Kolender, 461 U.S. at 364 (Brennan, J., concurring). We are
confident that this was just such a situation. Faced with an
officer pressing him for "identificacion," we think it
unsurprising that appellant responded with his driver's license,
just as Lara-Valirde answered with the incriminating information
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that he was an illegal alien and had no identification. Indeed,
there is no basis for concluding that appellant knew that the
license was facially identifiable as a fake, and he may well
have thought he could avoid greater difficulty by presenting it.
But whatever his precise motivation, we conclude that disclosure
of the license was not tainted by the earlier unlawful frisk.4
We therefore affirm the district court's denial of
appellant's motion to suppress the evidence of counterfeit
document production that was obtained following his arrest.
Affirmed.
4 Appellant seems to argue that, even if the unlawful frisk
had no effect on his producing the license, it could have
influenced his decision to cooperate in the search of the
Highland Street apartment because his "first instinct, given
that the officers already had his wallet, may have been to
cooperate and confess." We reject the suggestion that the
government must disprove this highly speculative scenario.
There is no factual support for linking the post-arrest
cooperation with the illegal frisk. See Segura v. United
States, 468 U.S. 796, 815 (1984) ("[O]ur cases make clear that
evidence will not be excluded as 'fruit' unless the illegality
is at least the 'but for' cause of the discovery of the
evidence. Suppression is not justified unless 'the challenged
evidence is in some sense the product of illegal governmental
activity.'") (citation omitted).
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