UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
November 28, 1972
UNITED STATES of America
Aaron REID et al., Defendants
Mishler, Chief Judge.
The opinion of the court was delivered by: MISHLER
MEMORANDUM OF DECISION AND ORDER
MISHLER, Chief Judge.
Defendant Loffler moves pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure to suppress for the use as evidence a packet of counterfeit bills seized by a secret service agent from the left inside pocket of his jacket on March 8, 1972 at 555 Nostrand Avenue, Brooklyn, New York. The court held an evidentiary hearing.
555 Nostrand Avenue, Brooklyn, New York, is a clothing store in an area inhabited almost exclusively by Blacks. Defendant rents a portion of that store for the conduct of a retail business selling shoes and other merchandise. On March 7, 1972, Angus Sloan, Jr., known as "Stitch," a confidential informant (whose identity was revealed at the hearing), introduced Special Agent Willie Potts to co-defendant Aaron Reid who was engaged in the business of selling counterfeit money.
Special Agent Potts completed the transaction and received counterfeit Federal Reserve Notes from Reid. The transaction was negotiated and completed in a back room, separated by a door from the store in which Loffler conducted his business. The next day Special Agent Potts entered the premises alone and again in the back room offered to buy counterfeit money in the face amount of $40,000 from Reid. Loffler was in the store portion of the premises selling shoes to customers. Reid left the back room and Potts noticed that he spoke to a few people in the store among whom was defendant Loffler. Reid returned to the back room and advised Potts that the sale would have to be made as two transactions of $20,000 each instead of one of $40,000.
On exiting the store Potts (who is Black) spoke to another agent (who is also Black) who then gave a pre-arranged signal. Agents entered the premises with drawn revolvers and shotguns,
and announced that they were federal officers and that everyone in the store was under arrest. At that time Loffler was waiting on one customer, Luther Graham,
and wrapping up a pair of shoes sold to another. All those present in the store (five persons including Reid) were ordered against the wall facing the wall, hands above their heads and legs in spread eagle position. After the occupants were thus positioned, Special Agent Anthony F. Colgary III of the Secret Service of the Treasury Department entered the premises and proceeded to pat down Loffler and the others while they were held at bay by the other agents. Loffler had been ordered to move away from the wrapping counter and to face the wall. While patting down Loffler, Colgary felt a bulge in his left breast pocket that could possibly have been a slapjack.
Special Agent Colgary was not aware of Loffler's identity until he seized the packet of counterfeit bills from the left inner pocket of Loffler's jacket.
The government concedes that probable cause to believe that Loffler committed or was committing a crime was lacking. The government claims that the officer's right to pat down in a search for weapons was based on evidence that Reid was engaged in the counterfeiting business and a person known as Sam who worked in the store was in conspiracy with Reid.
The belief that Loffler could have been armed was premised on the experience of police officers that suspects dealing in large quantities of counterfeit money are often armed.
The government relies on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Terry held that under exigent circumstances upon reasonable suspicion that a crime is being committed or about to be committed, a police officer may stop a perpetrator or potential perpetrator for a brief period for the limited purpose of ascertaining identification and a pat down for weapons prior to arrest without offending Fourth Amendment rights.
Terry was an on-the-street encounter. It was the first case in which the Court was called upon to decide under what circumstances the Fourth Amendment allows a police officer pursuing his investigative duties in the interest of effective law enforcement to invade a citizen's personal security. Terry made it clear that Fourth Amendment limitations come into play as effectively in a stop (or seizure of persons) as in a "technical arrest," as surely in a "pat down" as in a "full blown search." 392 U.S. at 19, 88 S. Ct. at 1878-1879. The Court recognized that refinement of the general principles enunciated in this area of constitutional law would be developed ". . . in the concrete factual circumstances of individual cases." 392 U.S. at 29, 88 S. Ct. at 1884.
Terry held that a police officer may stop a person briefly for questioning upon reasonable suspicion that that person is engaging or about to engage in criminal activity, and that upon suspicion that the person may be armed, the police officer has the right to frisk him. 392 U.S. at 23-24, 88 S. Ct. at 1881. The right to intrude on the citizen's personal security is based on ". . . more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." 392 U.S. at 23, 88 S. Ct. at 1881.
Sibron v. New York and Peters v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)
decided the same day as Terry, described a Terry type search as consisting "solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault." 392 U.S. at 65, 88 S. Ct. at 1904.
The latest pronouncement
by the Court on stop and frisk came on June 12, 1972 in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
The Court held that the police officer had enough information ". . . to justify the officer's forcible stop of Williams." 407 U.S. at 147, 92 S. Ct. at 1924. Explicating Terry the Court explained the purpose of the stop and the frisk as follows:
"A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations omitted] . . . The purpose of [an ensuing] limited [protective] search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose." 407 U.S. at 146, 92 S. Ct. at 1923.
No case has come to the court's attention which approves of a frisk of an individual without a stop directed towards investigating that individual.
Implicit in Sibron is the denial of such a right to the police officer. Mr. Justice Harlan so interpreted Terry. In his concurring opinion he said:
"In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. . . . I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime." 392 U.S. at 32-33, 88 S. Ct. at 1885-1886.
The analogy of the right to search for weapons as incident to a lawful arrest is not amiss. See Sibron, supra, 392 U.S. at 67, 88 S. Ct. at 1905.
The manner of the arrest also brings the search under constitutional scrutiny. The Constitution will not tolerate the indiscriminate arrest of a group of citizens because of suspicion that one of the group committed a crime. In such case, police efficiency must submit to the constitutional limitation that preserves the Fourth Amendment right to personal security. The Court said in Davis v. Mississippi, 394 U.S. 721, 726-727, 89 S. Ct. 1394, 1397, 22 L. Ed. 2d 676 (1969):
"Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.'"
The search in the case before this court went beyond the permissible limits set out in Terry. Special Agent Colgary had no reasonable belief that the object he felt within Loffler's inside pocket was an assaultive weapon. The search is strictly limited in scope to a search for assaultive weapons. See Terry, 392 U.S. at 27, 88 S. Ct. at 1883. If the pat-down reveals objects that cannot reasonably be believed to fall into that category, the officer has no right to remove them.
See Tinney v. Wilson, 408 F.2d 912, 916 (9th Cir. 1969). With the weaponry in the hands of the agents trained on the suspects, a slapjack could hardly have been a threat to the arresting agents. Furthermore, a slapjack is of various sizes but usually narrower than currency, and thus Special Agent Colgary's belief that the object could possibly have been a slapjack was not a reasonable belief that the object was a slapjack. The manner of the search in a stop and frisk should be closely scrutinized. The opportunity for abuse of the police officer's right is a threat to the citizen's Fourth Amendment right. "There is too much danger that, instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true." Williams v. Adams, 436 F.2d 30, 38 (2d Cir. 1970) (Friendly, Ch. J., in dissent).
The motion to suppress is granted. It is
Ordered that the packet of counterfeit bills seized from the person of the defendant Tibor Loffler on March 8, 1972 be and the same is hereby suppressed for the use as evidence.
This memorandum of decision and order is filed nunc pro tunc as of November 21, 1972.