United States v. Villanueva

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).

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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

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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 . . .").

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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

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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

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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.

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