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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