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UNITED STATES v. THOMPKINS

December 23, 1975

UNITED STATES of America
v.
Ronald George THOMPKINS, Defendant



The opinion of the court was delivered by: LASKER

MEMORANDUM

 LASKER, District Judge.

 By memorandum dated November 17, 1975 we granted the defendant's motion to suppress an envelope seized at the scene of arrest. Claiming that the decision was based on an "incorrect factual premise," the government now moves to reargue.

 The government correctly observes that a key element in the decision to suppress was the conclusion that Officer Maffia knew that the hard object he felt in the defendant's jacket pocket was a comb before he withdrew the comb and envelope from the pocket. We held that while the officer

 
"may have been justified in inspecting the suspect's jacket, feeling for hard objects and looking into a pocket upon feeling one such hard object, he had no right, once he had satisfied himself that the object was a comb, to proceed further and empty the contents." Memorandum Opinion 403 F. Supp. 350, at 352.

 The government suggests that this factual determination is contradicted by the record; that although Maffia did first look into the pocket and see the comb, "there is no evidence that he concluded the comb was the hard object he felt inside the pocket." (Devorkin Affidavit, para. 3) We cannot agree.

 Maffia testified that upon picking up the jacket, he felt "an object" in the inside right breast pocket. (Tr. 24) His testimony about this discovery was repeatedly and consistently in the singular (Tr. 24; 41-46) and we conclude that he felt one, and only one, hard object in the pocket.

 On cross examination, counsel for the defendant attempted to elicit from the officer what precautions he took against the danger of reaching into the pocket and discharging a weapon due to ignorance of the size, nature or position of the hard object. Maffia conceded that he first looked into the pocket and concluded that the hard object was not a gun before putting his hand in the pocket. (Tr. 42) When the officer then testified that he removed both the envelope and the comb at the same time, the following colloquy occurred:

 
"Q: Before [the envelope] even came out, you already knew that the comb was a comb and not a gun?
 
A: Yes."

 The officer then volunteered that as a matter of routine precaution, he "[takes] what [he] can" out of the pocket and then searches further to be sure it is empty. (Tr. 43-44)

 On redirect the government first attempted to show that Maffia recognized the hard object to be a comb only as he was removing it (Tr. 44) but it became clear that this was simply not the case. On questioning by the court, Maffia reiterated that he saw the envelope and the comb before removing both. (Tr. 44-46) The court thereupon inquired if this was done to see if there was anything else and Maffia said it was. (Tr. 45) It was in the context of this inquiry that the exchange partially quoted by the government in its moving papers took place.

 
"THE COURT: When you went with your finger like that, approximately like that, by that time or immediately thereafter, immediately after that time ...

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