United States Court of Appeals
For the First Circuit
No. 04-2075
UNITED STATES OF AMERICA,
Appellee,
v.
KEITH BARBOZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. Chief District Judge]
Before
Boudin, Chief Circuit Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge.
Theodore B. Heinrich, Assistant U.S. Attorney, with whom
Michael J. Sullivan, U.S. Attorney, was on brief for appellee.
Randolph M. Gioia was on brief for appellant.
June 15, 2005
*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
BALDOCK, Senior Circuit Judge. We address a single issue
in this appeal: Whether, during an initial pat-down for weapons,
an officer’s insertion of his index finger into the instep of a
suspect’s “mid-top” sneaker exceeded the proper scope of a
protective search.
I.
The relevant facts are undisputed. Boston police
officers witnessed Defendant speaking with suspected gang members
on a street in Boston known for gang violence. Moments later,
during an investigatory stop (the legality of which Defendant does
not challenge), Defendant identified himself to police officers as
Keith Barboza. Officer Robert Fratalia recognized Defendant’s name
based on police intelligence as that of a gang-affiliated
individual who routinely carried a firearm. Based on his
knowledge, Officer Fratalia commenced a pat-down search of
Defendant. A pat-down of Defendant’s outer clothing, including his
shoes, was unremarkable. Officer Fratalia next ran his index
finger between Defendant’s ankle (the record is unclear as to which
ankle) and the inside of Defendant’s mid-top sneaker. Officer
Fratalia did so as a result of a past experience in which he
discovered a handgun concealed in the shoe of a suspect already in
custody. Officer Fratalia felt a hard metal object between the
sole of Defendant’s shoe and his foot which the officer believed to
be a firearm. A search of Defendant’s shoe uncovered a .25
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caliber, semi-automatic pistol loaded with eight rounds of
ammunition.
Defendant was indicted for being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). Following the
district court’s denial of his motion to suppress, Defendant
entered a conditional guilty plea. The district court sentenced
Defendant to seventy months imprisonment and he appealed. Our
jurisdiction arises under 28 U.S.C. § 1291. We review the district
court’s determination that Officer Fratalia acted reasonably when
he inserted his index finger into the instep of Defendant’s sneaker
de novo. See United States v. Sargent, 319 F.3d 4, 8 (1st Cir.
2003). Applying this standard, we affirm.
II.
The Fourth Amendment does not require police officers to
take unnecessary risks in the performance of their duties. The
purpose of a protective search in the absence of probable cause is
not to discover evidence of a crime, but to neutralize the threat
of physical harm to police officers and others. See United States
v. Nee, 261 F.3d 79, 84-85 (1st Cir. 2001). To determine whether
a protective search of a person violated the Fourth Amendment
(i.e., was objectively unreasonable) in the absence of probable
cause, a court asks whether the officer’s actions were reasonably
related in scope to the circumstances that justified the initial
lawful detention. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
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“Limited searches of a person for weapons are constitutionally
permissible adjuncts to a Terry stop if ‘a reasonably prudent man
in the circumstances would be warranted in the belief that his
safety or that of others was in danger.’” Nee, 261 F.3d at 83
(emphasis added) (quoting Terry, 392 U.S. at 27). Necessarily
then, courts develop the limitations which the Fourth Amendment
places upon protective searches “in the concrete factual
circumstances of individual cases.” Terry, 392 U.S. at 29.
III.
Defendant argues Officer Fratalia’s concern about a
weapon hidden in his shoe was unreasonable and did not justify
extending the search beyond a pat-down of his outer clothing.
According to Defendant, his weapon posed no danger to the officers
because it was not “readily accessible.” To be sure, Officer
Fratalia acknowledged at the suppression hearing that Defendant
would have had to remove his shoe to access the weapon. The
problem with Defendant’s argument is that when Officer Fratalia
placed his finger into the instep of Defendant’s mid-top sneaker,
he did not know the weapon was “inaccessible.” What Officer
Fratalia did know based upon the surrounding facts and
circumstances, and the inferences to be drawn therefrom, was that
Defendant might well be armed. See id. at 21. Officer Fratalia’s
belief was objectively reasonable. See id. As the Supreme Court
explained in Michigan v. Long, 463 U.S. 1032 (1983), a case
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extending the lawful scope of a protective search to a vehicle’s
passenger compartment:
When the officer has a reasonable belief “that
the individual whose suspicious behavior he is
investigating at close range is armed and
presently dangerous to the officer or to
others, it would appear to be clearly
unreasonable to deny the officer the power to
take necessary measures to determine whether
the person is in fact carrying a weapon . . .
.”
Id. at 1047 (quoting Terry, 392 U.S. at 24).
Officer Fratalia’s minimally intrusive search of
Defendant’s sneaker for the purpose of locating a concealed weapon
was not unreasonable merely because Defendant might have been
fractionally delayed in employing it against the officers or
others. As the district court noted, Defendant might have placed
the weapon in the side of his sneaker, making it readily
accessible. Moreover, Defendant could have fled from the officers
and, in so doing, retrieved the weapon from his shoe. See id. at
1051. In addition, if Officer Fratalia had not placed Defendant
under arrest, Defendant would have been free to go, providing him
once again with ready access to his weapon. See id. at 1052. We
hold under the totality of the circumstances of this case that
Officer Fratalia’s insertion of his index finger into the instep of
the Defendants mid-top sneaker did not exceed the proper scope of
his protective search.
AFFIRMED.
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