United States Court of Appeals
For the First Circuit
No. 02-2003
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM MICHAEL OSBOURNE,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Chief Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Miriam Conrad, with whom the Federal Defender's Office was on
brief for appellant.
Patrick M. Hamilton, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
April 16, 2003
HOWARD, Circuit Judge. Defendant-appellant William
Michael Osbourne appeals the partial denial of his pretrial
suppression motion, arguing that a statement made by the district
court in the course of its extemporaneous oral ruling evinced both
a misunderstanding and material misapplication of Terry v. Ohio,
392 U.S. 1 (1968). Specifically, Osbourne contends that the court
upheld a second pat-frisk of his person -- one that led to his
arrest for unlawful firearm possession -- only after mistakenly
concluding that, once there were legitimate grounds to pat-frisk
him, there was no limit to the number of pat-frisks that officers
on the scene were permitted to conduct. Our analysis of the
context in which the court made the statement convinces us that
Osbourne has read too much into it and that the court's ruling was
not based upon legal error. We summarize the facts that lead us to
this conclusion.
Late in the afternoon of September 18, 2001, Boston
Police Detective Robert Fratalia was driving in the Roxbury section
of Boston to scout out locations where a youth violence
investigative team with which he was working would be executing
search warrants in the coming days. Federal agents Daniel Campbell
and Michael Oppenheim accompanied Fratalia. The contemplated
warrants were to target members of the Esmond Street gang, which
Fratalia knew to be involved in drug trafficking, firearms
offenses, and street violence with a rival gang. One of the
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residences to be searched was Osbourne's. Fratalia had specific
knowledge that Osbourne was a member of the Esmond Street gang's
"inner circle" and a likely target in the on-going feud with the
rival gang. Fratalia also had been told that Osbourne carried a 9-
millimeter firearm on his person at all times.
As he was driving down Walnut Street, Fratalia noticed
Osbourne's parked car. Fratalia then observed Osbourne himself
walking down the street with one Clifford Carr. Although he
contested it below, Osbourne now concedes that, when Fratalia first
spotted him, Fratalia had grounds to reasonably suspect that
Osbourne was in unlawful possession of a firearm. Fratalia decided
to act on his suspicion by conducting a Terry stop of Osbourne. He
alerted Campbell and Oppenheim to Osbourne's presence, pulled his
police vehicle alongside of Osbourne and Carr, let Campbell and
Oppenheim out, and parked the car diagonally across the sidewalk in
front of them. At the suppression hearing, Fratalia described what
happened next:
Special Agent Campbell had gone towards ...
Osbourne, Special Agent Oppenheim kind of
stayed in back of Campbell closer to the
curbing where it met the street. I got out of
the vehicle and went immediately over to where
Osbourne and Carr had been. Special Agent
Campbell did a quick pat-frisk of Mr. Osbourne
and went right to Mr. Carr upon him seeing me
being right next to him.
As Campbell began his pat-frisk of Carr, Fratalia conducted a pat-
frisk of Osbourne. Almost immediately, Fratalia detected what he
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believed to be the handle of a gun in Osbourne's waistband. He
removed the item, discovered that it was a fully loaded 9-
millimeter semi-automatic handgun, and arrested Osbourne.
On October 17, 2001, a grand jury indicted Osbourne for
being a felon in unlawful possession of a firearm, in violation of
18 U.S.C. § 922(g)(1) (2000). On February 27, 2002, Osbourne filed
a written motion to suppress evidence of the gun (as having been
seized in violation of Terry) and certain statements he made to the
officers following his arrest (as having been elicited in violation
of Miranda v. Arizona, 384 U.S. 436 (1966)). Insofar as Osbourne
sought suppression of the firearm, his motion argued only that
Fratalia lacked grounds for a reasonable suspicion that Osbourne
was armed and dangerous when Fratalia first saw him walking down
the street with Carr. On March 20, 2002, the government filed a
written opposition to Osbourne's motion, contending that the pat-
frisk leading to the discovery of the firearm was authorized under
Terry because Fratalia reasonably suspected that Osbourne was
unlawfully armed when he initially spotted Osbourne and Carr.
Attached to the government's submission was, inter alia, an
affidavit from Fratalia acknowledging that "Campbell [had]
cursorily pat-frisked Osbourne before moving over to Clifford Carr"
and before Fratalia conducted the pat-frisk that led to the
discovery of the firearm. It was thus uncontested from the outset
that Fratalia was the second officer to pat-frisk Osbourne.
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From April 3 to April 5, 2002, the district court
conducted a hearing on Osbourne's motion. Consistent with his
written motion, Osbourne sought during the hearing only to develop
grounds for arguing that Fratalia lacked a basis to reasonably
suspect Osbourne of being unlawfully armed and dangerous when he
first spotted him on the street. Consequently, the lion's share of
the parties' closing arguments focused on the reliability of the
data giving rise to Fratalia's suspicion prior to the stop. But
just before concluding (and after the government had completed its
presentation), Osbourne's counsel introduced an entirely new line
of argument:
[L]et me actually go back because I
skipped a very crucial point, if I may.
The testimony was that Detective
Fratalia let Agent Campbell and Agent
Oppenheim out of the car, and Agent Campbell
frisked Mr. Osborne ... first .... So the
question, and I think it is a significant
question in this case, is what justified the
second frisk. And I would suggest that that
second frisk is not a legitimate frisk under
Terry. Certainly not in the absence of any
evidence that the first frisk was not
thorough; not in the absence of any evidence
that Agent Campbell -- excuse me, that during
the time between frisk number one and frisk
number two Mr. Osbourne did anything that
would suggest that he may have gained access
to a weapon that was missed the first time.
So, frisk number two I would suggest isn't a
Terry frisk at all. It's a search. And it
requires probable cause.
Now, that is consistent in terms of it
being a protective frisk, even if it's a
frisk, that rationale evaporates if ... one of
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those officers has already done a protective
frisk and has not found anything.
Immediately after Osbourne's counsel concluded, the
district court issued an oral ruling denying Osbourne's motion
insofar as it sought to suppress evidence of the firearm as having
been obtained in violation of the Fourth Amendment. The court
first found facts consistent with the rendition we have just
provided and concluded that Fratalia had grounds to reasonably
suspect Osbourne of being unlawfully armed and dangerous when the
episode began. As we have already stated, Osbourne does not
challenge this ruling on appeal. The court then addressed and
rejected Osbourne's argument that Fratalia's pat-frisk was unlawful
because it followed Campbell's and was unaccompanied by evidence
that Campbell's was incomplete or inadequate. In doing so, the
court stated:
In the event, and this is an
interesting wrinkle, it was not [Fratalia] who
first pat-frisked Mr. Osbourne but it was Mr.
Campbell, Officer Campbell, a younger officer,1
and not part of Fratalia's Boston Police
force. Now, Fratalia was watching the
situation. So he knew that Campbell had
already touched, and characterized it as a pat
frisk and I accept that.
And so the question is what justified
Detective Fratalia from doing it himself?
Well, it seems to me it was a rapidly evolving
situation, and with two individuals, as
Fratalia approached, Campbell moved over to
1
All agree that this comment was mistaken and that there was
no evidence that Campbell was younger than Fratalia.
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Carr, it's not clear that Oppenheim was doing
anything but surveilling the scene, I think it
was good police work. I don't think there's a
limitation on the number of people who can
pat-frisk you. And I think for his own
safety, I don't think fear need enter into it,
I think for his own safety and those of the
other officers Detective Fratalia, under the
same standard, reasonable suspicion, though at
that time there was not probable cause, could
pat-frisk Mr. Osbourne, and then the weapon
was discovered. That's the Fourth Amendment
analysis. (Emphasis supplied).
Construing the underlined text as reflecting a belief on
the district court's part that the "police may frisk a suspect as
many times as they wish, assuming a lawful basis for the first
frisk," Appellant's Br. at 9, Osbourne argues that the remark
represents an erroneous distillation and application of Terry that
undermines the court's suppression ruling. If we shared Osbourne's
understanding of the statement, we would be inclined to agree.
While many areas of Fourth Amendment doctrine are characterized by
specific bright line principles designed for straightforward
application by law enforcement officers, see Atwater v. City of
Lago, 532 U.S. 318, 347 (2001), "reasonableness" in the context of
a Terry stop is given content by balancing the need for the
encroachment against its nature case by case and in light of all
the attendant circumstances, id. at 347 n.16; id. at 366 (O'Connor,
J., dissenting); United States v. Sokolow, 490 U.S. 1, 7-8 (1989);
United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001).
Consequently, a one-size-fits-all rule such as the one Osbourne has
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inferred from the court's statement would be unusual, if not an
anathema, in the context of Terry. But we do not understand the
court's comment to reflect such an underlying perspective.
Rather, we regard the district court's "there is no
limitation" comment to be a rejection of what it understood to be
Osbourne's own suggestion of an applicable categorical rule: that
a second pat-frisk is per se unreasonable in the absence of
evidence that the first frisk was cursory or that the subject of
the frisk had an opportunity to arm himself in the interim. And in
our view, the court was entirely correct to reject this suggestion.
Cf. Sokolow, 490 U.S. at 7-8 (rejecting a specific two-part rule
designed by a court of appeals to assess the reasonableness of
Terry stops of suspected drug couriers). We can envision myriad
factual contexts in which courts could be called upon to assess the
reasonableness of multiple pat-frisks of a single suspect.
Especially given the absence of record evidence concerning the
effectiveness of pat-frisks, our adoption of Osbourne's rigid
formulation would unduly cabin the reasonableness inquiry to be
conducted in such cases every bit as much as the rule he says the
court applied. See id.
In the end, the reasonableness of a second or subsequent
pat-frisk conducted pursuant to Terry is to be determined under a
standard that takes account of the fact that "context is vital."
United States v. Cook, 277 F.3d 82, 85 (1st Cir. 2002). The
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standard is familiar: "A police officer may frisk a suspect --
that is, search the suspect's person for weapons -- on reasonable
suspicion that the suspect is armed and dangerous." United
States v. Scott, 270 F.3d 30, 41 (1st Cir. 2001), cert. denied, 535
U.S. 1007 (2002). Here, the context in which Fratalia frisked
Osbourne led the district court to conclude that Fratalia still
entertained such a reasonable suspicion as to Osbourne,
notwithstanding Campbell's "quick" (to use Fratalia's description)
initial frisk of him. We agree with the court's conclusion. This
was not a case involving an unknown suspect; Fratalia had specific
information that Osbourne was "always" armed with a semi-automatic
weapon and was a member of a violent street gang. Moreover, as the
court observed, Fratalia encountered Osbourne in "a rapidly
evolving situation" in which the investigating officers needed to
keep tabs on not one suspect but two. Under the circumstances,
Fratalia reasonably declined to regard the frisk conducted by
Campbell as conclusive on the question whether Osbourne was armed
and dangerous.
Accordingly, we affirm the court's partial denial of
Osbourne's motion to suppress.
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