Appeal from a judgment of the District Court for the Southern District of New York, Lee P. Gagliardi, Judge, convicting appellant, after a verdict, of possession of approximately 34 grams of cocaine with intent to distribute and of simple possession of the same, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 844.
Lumbard, Friendly and Feinberg, Circuit Judges.
Gilberto Santana appeals from a judgment of the District Court for the Southern District of New York convicting him, after a verdict, of possession of approximately 34 grams of cocaine with intent to distribute and of simple possession of the same, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 844.
The most serious point raised on appeal is the correctness of the court's ruling, at the conclusion of a pre-trial suppression hearing, which upheld the legality of the seizure of the cocaine. The circumstances, briefly stated, were as follows:
On the night of June 8, 1973, Patrolman John DeRosa, a narcotics investigator assigned to the New York Joint Task Force, had under surveillance the La Concha restaurant on Manhattan's Upper West Side. The restaurant was known to the police to be a meeting place for persons engaged in narcotics activities. Accompanying DeRosa in a government car was Detective Patrick Campbell of the New York City Police Department.
Late in the evening, the officers saw Santana and a companion, who later turned out to be Alfredo Aviles,*fn1 drive up to the restaurant and illegally double park in front. Santana and Aviles entered the restaurant and returned to the car half an hour later, with Santana carrying a brown paper bag.*fn2 DeRosa testified that he recognized Santana as being among the 100 major narcotics violators in New York City, according to police files, and that an anonymous informant had told him Santana was "heavily engaged in narcotic activities." Santana and his companion then drove to a nearby apartment building at 331 West End Avenue, with the police following in their vehicle. After again double-parking the car, Santana entered the building and emerged about ten minutes later carrying a second brown paper bag.*fn3
Meanwhile the officers left their vehicle and continued the surveillance on foot. Santana reentered his car on the driver's side and prepared to drive off. DeRosa then walked up to the car and tapped at the window on Santana's side. When Santana lowered the window, DeRosa asked him to produce his driver's license and registration. Santana voluntarily opened the door, stepped out of the car, and reached for his wallet, leaving the door about two feet open. DeRosa then pushed the door the rest of the way open -- about another foot -- and stepped between the door and the car. He testified that from that position he could see a clear plastic bag filled with a white powdery substance that had been secreted between the door and the front seat. DeRosa seized the bag, which he correctly assumed to contain narcotics, and the officers immediately arrested Santana and Aviles for drug violations.
Santana contends that, both because of DeRosa's admitted pushing of the door and because, as he alleges, the evidence shows that DeRosa stuck his head inside the car before observing the clear plastic bag, the seizure violated the Fourth Amendment. The Government concedes that the officers did not have probable cause to search the car but argues that the seizure should be upheld under the "plain view" doctrine.
Although Santana has not questioned the legality of the officer's request for the production of identification, this point should be considered since it bears on the permissible limits of the subsequent conduct. While the Government relies in part on the double-parking violation, we are by no means convinced that the stop and subsequent seizure could be justified on that ground alone. To be sure, a number of cases have sustained seizures where the police have stopped traffic violators and have subsequently seen narcotics or other evidence of crime in the stopped car. See, e.g., Busby v. United States, 296 F.2d 328 (9 Cir. 1961); Jefferson v. United States, 121 U.S. App. D.C. 279, 349 F.2d 714 (1965); United States v. Bourassa, 411 F.2d 69 (10 Cir.), cert. denied, 396 U.S. 915, 24 L. Ed. 2d 192, 90 S. Ct. 235 (1969); Stotts v. Perini, 427 F.2d 1296 (6 Cir. 1970); United States v. Drew, 451 F.2d 230 (5 Cir. 1971); United States v. Mahanna, 461 F.2d 1110 (8 Cir. 1972). But in those cases the traffic violation was the reason for the stop. Here the officers were interested in narcotics violations, not in traffic offenses, as is evidenced by their failure to question Santana at all when he double-parked in front of the restaurant or when he first double-parked at 331 West End Avenue. The demand for identification was made not when he engaged in the double-parking but when he was about to cease it. In their testimony the officers made no pretense that their demand for identification was based on the double-parking.*fn4 Amador-Gonzalez v. United States, 391 F.2d 308 (5 Cir. 1968), held that a pretextual arrest for a traffic violation would not support an incidental search of a car. See also Taglavore v. United States, 291 F.2d 262, 265 (9 Cir. 1961); State of Montana v. Tomich, 332 F.2d 987, 989 (9 Cir. 1964); United States v. Harris, 321 F.2d 739, 741 (6 Cir. 1963); Hill v. United States, 135 U.S. App. D.C. 233, 418 F.2d 449, 452 (1968). It may well be that the same view should prevail with respect to a "plain view" of the inside of a car resulting from a pretextual stop for such a minor offense.
However, we need not decide that point since the "stop" and the request for identification in this case were justified under the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972). The officers were surveilling a restaurant known to be a headquarters for the narcotics trade. They saw a prominent figure in the trade emerge with the brown paper bag which has long been a sort of hallmark of the narcotics business,*fn5 cf. United States v. Montalvo, 271 F.2d 922, 924-25 (2 Cir. 1959), although, of course, such bags are used to carry many other things as proved to be the case here. The stop at the apartment building at 331 West End Avenue and Santana's emergence with another brown paper bag heightened the officers' suspicion that Santana and Aviles were preparing to make a sale. The officers had left their car and it might well have been impossible for them to resume the surveillance in time to catch up with Santana and Aviles and see what they were about. The combination of these circumstances sufficed to meet the rather lenient test for a stop which the Supreme Court, reversing this court, applied in Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972).
It is not clear from the Court's stop and frisk decisions how far a permissible stop of a car authorizes a quick glance at its interior for reasons unrelated to the officer's safety. None of the cases in the Terry trilogy involved a car; so far as concerns a person not in a car, Sibron v. New York, 392 U.S. 40, 65, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), held that a stop merely authorizes police to take reasonable precautions for their own safety while interrogating the person who has been stopped. Adams v. Williams did involve a car, but the search was justified as incident to an arrest for which the policeman's observations, in the interest of self-protection, had afforded probable cause, 407 U.S. at 148-49.
However, on the facts here DeRosa's observation of the interior of the car was justified even on a strict reading of the Court's decisions. While DeRosa had received no specific information that Santana or Aviles was armed, it would not be unreasonable for a policeman to assume that a man believed to be one of the top narcotic violators in the New York area would be carrying arms or would be otherwise violent.*fn6 DeRosa's only intrusions consisted of pushing the door open a foot further than Santana had left it and then stepping inside the door to get on the same side as Santana. The Government contends these were proper precautions to prevent Santana's shoving the open door against the officer and cites DeRosa's testimony "That's the training we received in the New York City Police Department." While the officer's remark does not make it entirely plain whether the objective of the "training" was to enhance safety, as could well be true, or to provide an opportunity for looking into stopped cars, we must take the inference more favorable to the Government.*fn7 Having gone that far, we see no basis for discrediting DeRosa's testimony that once he assumed his position inside the door he immediately saw the plastic bag and then leaned into the car to pick it up. Officer Campbell's testimony was not truly in conflict, as appellant urges it to be. Campbell testified that DeRosa bent into the car and then told Santana he was under arrest. Since Campbell would have no way of knowing precisely when DeRosa spotted the narcotics, his testimony is not inconsistent with DeRosa's claim that he saw the bag before leaning into the car. ...