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United States v. Toro

decided: July 25, 1972.

UNITED STATES OF AMERICA, APPELLANT,
v.
VICTOR DEL TORO, DEFENDANT-APPELLEE



Moore, Smith and Hays, Circuit Judges. Moore, Circuit Judge (dissenting).

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

This appeal is taken from an order entered in the United States District Court for the Southern District of New York (Morris E. Lasker, Judge) granting defendant-appellee's motion*fn1 to suppress cocaine seized from his person by the New York Joint Narcotics Task Force*fn2 allegedly in violation of the Fourth Amendment. The district court ruled that a limited search of appellee for weapons had not been warranted, and was therefore not obliged to reach the question whether the seizure of the cocaine after the pat-down was reasonable. We cannot agree that a cursory "frisk" for weapons was unjustified under the circumstances of this case, but hold that as a matter of law a ten dollar bill folded to a size of 2 inch X 3/4 inch and containing 2.2 grams of cocaine felt in the handkerchief pocket of appellee's suit coat could not reasonably have aroused the suspicion of a weapon; we therefore affirm the suppression order but on the ground that a permissible pat-down search evolved into an illegal search for evidence.

On May 11, 1971 a warrant was obtained for the arrest of one Rivera, a known narcotics dealer. He was located at 11 p.m. leaving a bar in the company of appellee, owner of the bar and Rivera's employer, who was unknown to the agents. As the two men, who were kept under surveillance, left another bar at 1:10 a.m. the next morning, the eight shadowing agents closed in with drawn revolvers and ordered them out of appellee's car. Rivera was arrested, searched, and cocaine (but no weapon) discovered on his person. Then on the other side of the car, covered by his fellow agents, Officer LaBriola frisked appellee for weapons. Officer LaBriola explained at the hearing below that drug dealers were usually armed and often accompanied by armed bodyguards.*fn3 When he felt a small, creased object in appellee's handkerchief pocket, he claimed he had feared the presence of a knife or razor blade; upon removal it turned out to be a folded ten dollar bill containing a small amount of cocaine.

A police officer may forcibly stop a suspect, and promptly conduct a superficial pat-down for weapons if in the light of his experience he reasonably perceives the threat of harm in a given factual situation. Terry v. Ohio, 392 U.S. 1, 26, 33, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Cf. LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 87 (1968). Officer LaBriola confronted appellee late at night on a street in the Bronx as the sole companion of a known narcotics dealer; unidentified, he had accompanied the dealer throughout the period of surveillance; viewing this factual situation in the light of his experience that narcotics dealers often employed armed bodyguards, it would have been less than prudent for him to do other than conduct a limited pat-down for weapons. Granted that appellee was not uncooperative, and that the police were present in force, it would nevertheless be unreasonable to expect them to expose themselves to a violent escape attempt,*fn4 however futile, when the limited intrusion of a pat-down would promptly defuse what officers experienced in narcotics enforcement perceived as a potentially explosive situation. See United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971); United States v. Gonzalez, 319 F. Supp. 563, 564-565 (D.Conn.1970).*fn5 We have no doubt that society's interest in minimizing the risk to police officers under the circumstances of this case outweighs the threat to the privacy of the individual. See, Terry, supra, 392 U.S. at 20-21, 88 S. Ct. 1868.

We would not of course countenance a full-blown search for evidence as distinguished from seeking a weapon under the same circumstances. See Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Police action justified at its inception may quickly exceed the reach of that justification:

The sole justification of . . . [a limited search for weapons] is the protection of the police officer and others nearby, and it therefore must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

Terry v. Ohio, 392 U.S. at 29, 88 S. Ct. at 1884.

See Sibron, supra, 392 U.S. at 65, 88 S. Ct. 1889. The fruits of an intrusion which exceeded its legitimate scope are inadmissible in a subsequent criminal proceeding. Terry v. Ohio, supra, 392 U.S. at 29, 88 S. Ct. 1868. Our reading of the record at the suppression hearing has persuaded us that the limited search for weapons, justified by the circumstances of this case, did degenerate into an unrelated and therefore unreasonable search for evidence.

Officer LaBriola was, as we have noted, experienced in narcotics enforcement; he knew that addicts often carried cocaine in a folded dollar bill; he had discovered cocaine in folded currency on some fifty prior occasions; he knew cocaine had just been discovered on Rivera. It strains credulity to suppose that when Officer LaBriola pressed his hand to appellee's handkerchief pocket, and felt a small and flexible object, he suspected anything other than the possible presence of cocaine in precisely the container his search would shortly produce.

True, it could have been a razor blade; something of the size and flexibility of a razor blade could be concealed virtually anywhere,*fn6 and accordingly provide the pretext for any search, however thorough.*fn7 It is significant that here, for example, Officer LaBriola's pat-down revealed an object which he supposed to be appellee's wallet. It could easily have contained a razor blade; yet it was not seized. Nor we think would the folded ten dollar bill have been seized had not Officer LaBriola in all likelihood suspected what he had found, not a weapon, but cocaine.

It may be argued that this gave the officer probable cause to arrest and that the search was incident to arrest. There are two difficulties with this, however. First, arrest was not made until after the search, and the opening of the packet, had disclosed the contraband. Second, a too generous view of the evidence as providing probable cause for arrest rather than mere suspicion would encourage indiscriminate searches unrelated to the need for protection of the officers which need for protection furnishes the foundation of the warrantless frisk or pat-down rule. It would make illusory the Fourth Amendment protection against unreasonable searches and seizures.

The seizure, not reasonably related to the circumstances which provoked the protective search for weapons, and not incident to an arrest, violated appellee's Fourth Amendment rights; ...


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