UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1912
UNITED STATES OF AMERICA,
Appellant,
v.
KENNETH SCHIAVO,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Selya, Circuit Judge.
George W. Vien, Assistant United States Attorney, with whom
A. John Pappalardo, United States Attorney, and Geoffrey E.
Hobart, Assistant United States Attorney, were on brief for
appellant.
Paul F. Markham for appellee.
July 13, 1994
TORRUELLA, Circuit Judge. In this interlocutory
appeal, the government challenges the district court's order
suppressing evidence seized during the course of a motor vehicle
stop. We affirm.
BACKGROUND
Kenneth Schiavo, Howard Winter, and Gennaro Farina were
the subject of a drug investigation by federal agents and the
Massachusetts State Police. As part of the investigation, the
government provided a confidential informant ("CI") with $9,000
in government funds in a White New Balance bag to be used for the
purchase of drugs.1 On November 4, 1991, the CI met Winter at
the Centurian Pub in Sutton, Massachusetts, and gave him the
$9,000 as partial payment for a kilogram of cocaine that Winter
had delivered on November 1, 1991. After Winter took the cash,
agents followed him with the intention of recovering the money.
Agents also followed Schiavo, whom they believed to be Winter's
source of cocaine.
After Winter left the Centurian Pub, he went to his
home in the Worcester area, then to Pudgie's Lounge ("Pudgie's")
in Worcester. He then left Pudgie's, went home, and returned.
After exiting Pudgie's the second time, he went to the Chandlery
Pub in Chelsea. Prior to Winter's arrival at the Chandlery Pub,
agents had followed Schiavo to this location. When Winter
arrived, Schiavo's vehicle was parked outside. Winter remained
1 Prior to providing the CI with this money, agents photocopied
each bill in order to memorialize the serial numbers of the
currency to be transferred to Winter.
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in the pub for approximately twenty minutes and then departed in
his vehicle. Approximately five minutes after Winter left,
Schiavo came out of the restaurant, got into his vehicle, and
exited the parking lot.
Trooper Thomas P. Duffy of the Massachusetts State
Police and several other investigating agents had developed a
strategy to recover the $9,000. Agents expected Winter to meet
with Schiavo to give him the money that he had just received from
the CI. In the event that Schiavo met with Winter, agents would
stop Schiavo's car.
In accordance with this plan, Trooper Duffy followed
Schiavo in an unmarked cruiser when Schiavo left the Chandlery
Pub. As Schiavo drove onto Broadway Street in Somerville,
Massachusetts, Trooper Duffy, who was dressed in uniform,
signalled to Schiavo to pull over. Schiavo pulled into the
parking lot of a nearby supermarket, parked, and got out of his
vehicle. Trooper Duffy asked Schiavo to produce his license and
registration.2 When Schiavo stood up after retrieving the
registration from the glove compartment, Trooper Duffy noticed a
large bulge protruding from the left side of Schiavo's jacket.
Trooper Duffy immediately asked Schiavo if he had a weapon.
Schiavo responded that he did not. Pointing to the bulge in
Schiavo's jacket, Trooper Duffy asked Schiavo, "Is this all you
here?," to which Schiavo responded, "Mostly." Trooper Duffy
2 Trooper Duffy was wearing a transmitting device during his
encounter with Schiavo.
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again asked Schiavo about the nature of the bulge and Schiavo
informed him that it was a bag. At that point, Trooper Duffy
conducted a pat frisk of Schiavo.
After Trooper Duffy completed the pat frisk, Schiavo
began to unzip his jacket in an apparent effort to show Trooper
Duffy that he was not carrying a weapon. Without being asked,
Schiavo stuck his hand inside his coat. Concerned that Schiavo
was indeed armed, Trooper Duffy immediately instructed Schiavo to
raise his hands. Trooper Duffy noticed a brown bag inside
Schiavo's jacket and asked what it contained. Schiavo stated,
"Just open my coat and take it." Schiavo then told Trooper Duffy
that the bag contained approximately $11,000.
When Trooper Duffy inspected the contents of the paper
bag, he found that it contained the white New Balance plastic bag
that the CI had given to Winter earlier. The bag contained
$8,500. After discovering this money, Trooper Duffy seized money
from Schiavo's shirt pocket and the two front pockets of his
pants. In total, Trooper Duffy seized $12,500 from Schiavo,
including the $9,000 given to Winter by the CI.
After his indictment, Schiavo filed a motion to
suppress the currency as evidence. The district court found that
because the incriminating nature of the bulge in Schiavo's pocket
was not immediately apparent to Trooper Duffy upon his initial
pat frisk, the "plain feel" doctrine espoused in Minnesota v.
Dickerson, 113 S. Ct. 2130 (1993), did not justify seizure of the
money during the Terry protective patdown search. The court
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further found that Trooper Duffy at no time had probable cause to
believe that Schiavo possessed the serialized money and therefore
Trooper Duffy did not have a justification to seize the money
based on exigent circumstances.
STANDARD OF REVIEW
We review the district court's findings of fact,
following the suppression hearing, including mixed findings of
fact and law, for clear error. United States v. Rodr guez-
Morales, 929 F.2d 780, 783 (1st Cir. 1991). We afford no
deference, however, to findings of the district court under the
wrong legal standard. Id.
PLAIN FEEL DOCTRINE
"[S]earches and seizures conducted outside the judicial
process, without prior approval by judge or magistrate are per se
unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well delineated exceptions."
Minnesota v. Dickerson, 113 S. Ct. 2130, 2135 (1993) (internal
citations and quotations omitted). One exception, recognized in
Terry v. Ohio, 392 U.S. 1 (1968), is that "where a police officer
observes unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be afoot
the officer may briefly stop the suspicious person and make
reasonable inquiries aimed at confirming or dispelling his
suspicions." Id. (internal citations and quotations omitted).
Under Terry, an officer may also conduct a patdown search where
the officer is justified in believing that the person is armed
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and dangerous to the officer or others. Terry, 392 U.S. at 24.
This protective search must be "limited to that which is
necessary for the discovery of weapons which might be used to
harm the officer or others nearby." Id. at 26; Dickerson at
2136.
During a lawful Terry-type search, police officers may
seize an object in "plain view" without a warrant if they have
probable cause to believe it is contraband without conducting
some further search of the object, i.e., if its incriminating
character is "immediately apparent." Dickerson at 2136-37.
Likewise, the "plain feel" doctrine permits an officer to seize
an object, if its incriminating character is immediately apparent
during a lawful protective pat-search. Id. at 2137-38.
In the present case, there is no doubt that the police
were justified under Terry in stopping Schiavo and frisking him
for weapons. The issue we must therefore address is "whether the
officer who conducted the search was acting within the lawful
bounds marked by Terry at the time he gained probable cause to
believe" that the bulge in Schiavo's jacket was contraband.3
Id. at 4548. The district court found that he did not. We quote
from the district court's Memorandum and Order:
At the suppression hearing, Trooper Duffy
repeatedly asserted that he did not know
what the bulge contained even after he
had conducted the pat frisk. In fact, he
indicated that only after he had taken
the bag of money from Schiavo's jacket
3 The government does not assert that the serialized money was
in "plain view" at the time of the search.
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and examined its contents was he able to
determine what the bulge was. Because
Trooper Duffy did not know what the bulge
was after the initial pat frisk and
because he needed to conduct a further,
unwarranted search of the bulge and its
contents to determine what it was, the
"plain feel" doctrine espoused in
Dickerson does not apply.
The district court properly applied the legal standard
described in Dickerson. The district court's conclusion that the
incriminating nature of the bulge in Schiavo's pocket was not
"immediately apparent" is not clearly erroneous. Trooper Duffy
"overstepped the bounds of the strictly circumscribed search for
weapons allowed under Terry." Id. at 4548. Trooper Duffy's
continued exploration of the brown paper bag in Schiavo's pocket
"after having concluded that it contained no weapon was unrelated
to the sole justification of the search under Terry: . . . the
protection of the police officer's and others nearby." Id. at
4548 (internal citations and quotations omitted).
PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES
The Supreme Court has held that in light of the
exigency arising out of the likely disappearance of a vehicle,
warrantless searches of a vehicle do not contravene the Warrant
Clause of the Fourth Amendment when such searches are based upon
probable cause to believe that the vehicle contains evidence of a
crime. California v. Acevedo, 500 U.S. 565, 569 (1991); Carroll
v. United States, 267 U.S. 132, 158-159 (1925). In Acevedo, the
Supreme Court extended this exception to containers found within
a movable vehicle. The Court held that where police had probable
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cause to search a container, in that case, a brown paper bag
located in the trunk of the car, the Fourth Amendment did not
require "the police to obtain a warrant to open the sack in a
movable vehicle simply because they lack probable cause to search
the entire car." Acevedo, 500 U.S. at 573.
Although the government does not contend that the
currency was seized pursuant to a vehicular search, the
government does maintain that exigent circumstances justified
seizure of the money without a warrant. The search of one's
person is more intrusive on the rights protected by the Fourth
Amendment than the search of an automobile. Cardwell v. Lewis,
417 U.S. 583, 590 (1974) (citing Almeida-S nchez v. United
States, 413 U.S. 266, 179 (1973) (Powell, J., concurring)).
Hence, circumstances which could justify a warrantless search of
an automobile will not necessarily justify a warrantless search
of a person. In the present case, we need not reach the issue
of whether exigent circumstances justified the warrantless search
of the paper bag located in Schiavo's jacket because we find that
the district court did not err in holding that the police lacked
probable cause to believe that Schiavo had the serialized money
at the time of the search at issue in this case.
"In enforcing the Fourth Amendment's prohibition
against unreasonable searches and seizures, the Court has
insisted upon probable cause as a minimum requirement for a
reasonable search permitted by the Constitution." Chambers v.
Maroney, 399 U.S. 42, 51 (1970); see also United States v.
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Ramsey, 431 U.S. 606, 622 (1977) (vehicular searches inside the
country require probable cause). Absent probable cause, exigent
circumstances would not bring the warrantless search of Schiavo
within the bounds of the Fourth Amendment.4
The government challenges the district court's finding
that at the time of the search, Trooper Duffy lacked probable
cause to believe that Schiavo possessed the serialized money. In
its initial Memorandum and Order5 the district court stated:
I note in passing that Duffy did not have
probable cause to believe that the money
was in Schiavo's possession. More than
two hours had passed between the CI's
delivery of the money to Winter and
Winter's arrival at the Chandlery.
During this time, Winter stopped at
several places, at any one of which he
could have left the money. There was
therefore not even probable cause to
believe that Winter had the money in his
possession when he entered the Chandlery.
Further, no one ever saw Winter deliver
4 The government argues that probable cause developed during
Trooper Duffy's encounter with Schiavo. This contention is
without merit. This argument overlooks the district court's
factfinding. The district court found that, "only after Trooper
Duffy had taken the bag of money from Schiavo's jacket and
examined its contents was he able to determine what the bulge
was." This is a fact-specific finding, well within the district
court's ken. Given the "greatly circumscribed" scope of
appellate review applicable to such findings, United States v.
Rutkowski, 877 F.2d 139, 144 (1st Cir. 1989), we must accept it.
Thus, because Trooper Duffy was not acting within the lawful
bounds marked by Terry at the time he realized that the bulge in
Schiavo's jacket was either contraband or evidence of a crime,
the search that gave rise to this discovery does not satisfy the
requirements of the Fourth Amendment. See Wong Sun v. United
States, 371 U.S. 471 (1963) ("fruit of the poisonous tree"
doctrine).
5 Following the Supreme Court's decision in Dickerson, the
district court reconsidered and reaffirmed its initial Order
allowing Schiavo's motion to suppress the currency seized.
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any money to Schiavo at the Chandlery.
Duffy conceded that he had only a "hunch"
that Schiavo had the serialized money
when he left the Chandlery.[6] I
consequently find that prior to stopping
Schiavo, Duffy's hunch did not rise to
probable cause to believe that Schiavo
possessed the serialized currency.
Although Duffy did not conduct a search
of Schiavo's vehicle, I simply note that
the evidence indicates that he would not,
therefore, have had probable cause to
support a warrantless search of Schiavo's
vehicle.
This finding by the district court is not clearly
erroneous. We therefore affirm the district court's order
suppressing the evidence seized during the stop of Schiavo's
vehicle.
Affirmed.
6 In a footnote the district court stated that "This hunch only
extended to the money being generally inside the vehicle. Duffy
admitted that he never anticipated that the money would be on
Schiavo's person."
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