United States Court of Appeals
For the First Circuit
No. O5-1096
UNITED STATES OF AMERICA,
Appellant,
v.
OMAR SHARIF McKOY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Robert E. Richardson, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellant.
Judith H. Mizner for appellee.
November 1, 2005
STAHL, Senior Circuit Judge. At Omar Sharif McKoy’s
trial for cocaine possession, the district court granted McKoy’s
motion to suppress evidence found on his person during a pat-frisk
search conducted by the police after McKoy was stopped for a
parking violation. The government appeals the order granting the
motion to suppress. We affirm.
I. Background
On a February afternoon in 2003, two plainclothes Boston
police officers were patrolling Boston’s Grove Hall neighborhood
when they spotted a vehicle parked with its front end extending out
into an intersection. The vehicle was blocking an access ramp for
the disabled and had a license place improperly displayed inside
the windshield. The officers testified that as they approached the
vehicle, they made eye contact with the driver, McKoy, and then saw
him twice lean and move his arm toward the center console area of
the vehicle. Suspecting McKoy might have been reaching for a
weapon, one of the officers, Thomas Joyce, asked him to get out of
the car and began to pat-frisk him. The frisk revealed marijuana
in McKoy’s pocket, at which point Joyce arrested McKoy. A further
search of McKoy’s person eventually recovered 5.63 grams of
cocaine, and he was ultimately charged with cocaine possession.
At trial, McKoy moved to suppress the evidence found
during the pat-frisk on the grounds that the frisk violated the
Fourth Amendment to the United States Constitution. The District
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Court for the District of Massachusetts granted the motion, and the
government now appeals.
II. Discussion
An officer may conduct a brief investigatory stop when he
or she has a reasonable, articulable suspicion that criminal
activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968); United
States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). After a valid
Terry stop, a pat-frisk for weapons is also permissible where “the
officer is justified in believing that the person is armed and
dangerous to the officer or others.” Romain, 393 F.3d at 71
(quoting United States v. Schiavo, 29 F.3d 6,8 (1st Cir. 1994));
Terry, 392 U.S. at 24. It is insufficient that the stop itself is
valid; there must be a separate analysis of whether the standard
for pat-frisks has been met. To assess the legality of a
protective frisk, a court looks at the totality of the
circumstances to see whether the officer had a particularized,
objective basis for his or her suspicion. United States v. Arvizu,
534 U.S. 266, 273 (2002).
We review a district court’s findings of fact regarding a
Terry stop and frisk for clear error and its legal conclusions de
novo. United States v. Cruz, 156 F.3d 22, 26 (1st Cir. 1998). The
district court found that the two officers were justified in
initially stopping McKoy because they had probable cause to believe
he had committed two traffic violations. This finding is clearly
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correct. Thus, our inquiry centers on the validity of the frisk:
that is, whether the totality of the circumstances provides a
particularized objective basis for the officers’ suspicion that
McKoy was dangerous and posed a threat to their safety.
The government relies on two factors as rationales for
the officers’ concern for their safety: (1) the dangerousness of
the neighborhood and (2) McKoy’s nervous appearance and movements
inside the car. Even taken together, these factors are
insufficient to justify the frisk.
First, the district court found that the officers
believed the neighborhood where McKoy was parked to be a high-crime
area, given that there had been two recent incidents of people
shooting at the windows of private security vehicles. While police
are permitted to take the character of a neighborhood into account
when assessing whether a stop is appropriate, see United States v.
Stanley, 915 F.2d 54, 56 (1st Cir. 1990), it is only one factor
that must be looked at alongside all the other circumstances when
assessing the reasonableness of the officers’ fear for their
safety. Moreover, “[t]his is not a case where the police had
reason to suspect the presence of firearms based on the type of
crime suspected.” United States v. Lott, 870 F.2d 778, 785 (1st
Cir. 1989). The only reason for the stop was a parking and license
plate violation, from which no assumption about weapons may fairly
be drawn. McKoy was the sole occupant of the vehicle and the
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officers made their approach during daylight hours. The previous
criminal incidents in the neighborhood thus lend only weak support
to the officers’ perception that McKoy was armed and dangerous.
Second, the government emphasizes that McKoy appeared
nervous and avoided eye contact as the officers approached his car.
McKoy also leaned and reached to his right, toward the center
console of the vehicle. The government argues that McKoy’s nervous
demeanor and his movements in the car are the kind of alarming
gestures that have been cited by courts as justifying a protective
search after a Terry stop. See, e.g., United States v. Moorefield,
111 F.3d 10, 14 (3d Cir. 1997) (holding that police had reasonable
suspicion to pat-frisk defendant during traffic stop where
defendant failed to keep his hands in view after being instructed
to do so). We disagree.
McKoy’s claimed nervous manner is easily explained.
Nervousness is a common and entirely natural reaction to police
presence, and the district court found that McKoy knew he was
dealing with police officers at least from the time the two
officers approached his car.1 Moreover, there was nothing sinister
or menacing about McKoy’s reaching movement toward the center
console. Although it is possible that such a movement could be
made to get a weapon, the movement is also consistent with reaching
1
As the district court observed, if McKoy did not know the two
men approaching his car were police, there was arguably even more
reason to be nervous and avoid eye contact.
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for a driver’s license or registration, a perfectly lawful action
that is to be expected when one is pulled over by the police. The
government’s proposed standard comes too close to allowing an
automatic frisk of anyone who commits a traffic violation in a
high-crime area. Although “we cannot blind ourselves to the need
for law enforcement officers to protect themselves and other
prospective victims of violence in situations where they may lack
probable cause for an arrest,” Terry, 392 U.S. at 24, a protective
frisk for weapons requires a reasonable inference that the person
being searched is armed and dangerous. Sibron v. New York, 392
U.S. 40, 64 (1968). It is simply not reasonable to infer that a
driver is armed and dangerous because the officers believe that he
appears nervous and reaches toward the car’s console when
approached by police, even in a high-crime neighborhood.
III. Conclusion
We fully recognize the risk of harm faced by police
officers at any traffic stop. However, as the district court
stated in its thoughtful opinion, “To admit the evidence would be
a legal determination that if one commits a traffic violation in a
high-crime neighborhood he will be subject to a frisk whenever he
appears nervous and moves.” Terry does not require that
determination, and the Fourth Amendment prevents it.
Affirmed.
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