any violation of Clark's rights under Miranda v. Arizona.
1. The Search Outside of 275 Genesee Street
Under Terry, an officer may conduct a limited protective search for weapons where, during a justified investigatory stop, he reasonably believes that the individual he is searching is armed and dangerous to the officers or to others. Terry, supra, at 24. In Sibron v. New York, 392 U.S. 40, 65, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), the Court stated that a search for weapons "consists solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault." "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." United States v. Terry, 718 F. Supp. 1181 (S.D.N.Y. 1989), aff'd, 927 F.2d 593 (2d Cir. 1991) (quoting, Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972)).
As indicated above, the Government and Clark agree that the initial pat down of Clark by Officer Ritchie was justified under Terry v. Ohio. The issue then is whether the subsequent pat-down of Clark by Detective St. Onge immediately following Ritchie's pat-down of Clark, and the additional search into Clark's inside coat pocket by St. Onge during the second pat down were permissible. Clark argues that the search into his coat pocket and the resulting seizure of cocaine were illegal. The Government responds that, under the circumstances of this case, St. Onge did not violate Clark's Fourth Amendment rights by searching inside his coat.
The Government concedes that St. Onge's search of Clark went beyond the scope of Terry v. Ohio, but argues that the search was based on probable cause, and therefore, the search was proper. The Second Circuit has held that a search which is more intrusive than a Terry search is tantamount to a warrantless arrest and must be based upon probable cause. See, United States v. Ceballos, 654 F.2d 177, 182 (2d Cir. 1981); United States v. Terry, supra, at 1186. See also, United States v. Vasquez, 612 F.2d 1338, 1345 (2d Cir. 1979), cert. denied, 447 U.S. 907, 64 L. Ed. 2d 857, 100 S. Ct. 2991 (1980) (a maximal intrusion, even if technically short of an arrest, must be based on probable cause). Probable cause exists where "the facts and circumstances within [the officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Dunaway v. New York, 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979).
In United States v. Terry, the court held that a search by a police officer in which the officer opened the defendant's jacket, observed a bulge, and reached under the defendant's sweatshirt, removing a brown paper bag containing narcotics was supported by probable cause where the defendant had been observed at a location suspected of being used for narcotics sales immediately prior to the stop, had engaged in evasive driving after leaving that location, and the driver of the vehicle in which defendant was riding gave the police a false statement as to their whereabouts immediately prior to the stop of the vehicle. The court specifically noted, however, that "a brief presence at a location suspected to be used for the sale of narcotics and possession of a brown paper bag by a person of the same description as the suspected purchasers [would] not [in itself] constitute probable cause," but rather, the evasive driving and false statement, in conjunction with the presence at the suspect location, led to the court's determination of probable cause. United States v. Terry, supra, at 1186 (emphasis added) (distinguishing United States v. Ceballos, 654 F.2d 177 (2d Cir. 1981)).
In this case, the court concludes that Detective Captain St. Onge's search of Clark's inside coat pocket was not supported by probable cause. Clark had not been observed going into or coming from the location which was being searched, but was only outside the premises standing in an area occupied by on-lookers from the neighborhood.
He was not the subject of the search warrant directed to the premises at 275 Genesee Street as no individuals were described in the warrant or in the supporting application. The only basis on which St. Onge reached into Clark's pocket during the instant search was that St. Onge had previously conducted a controlled buy of narcotics, apparently two days earlier, (T. 77), during which Clark was wearing the same coat and where the drugs Clark was allegedly selling on that occasion were observed by St. Onge to have been stored in his inner coat pocket.
The court finds that this, in itself, does not rise to the level of probable cause required to determine that the search was proper under relevant case law. See, e.g., United States v. Rodriquez, 750 F. Supp. 1272, 1275 (W.D.N.C. 1990), aff'd, 972 F.2d 343 (4th Cir. 1992) (court held officer's conduct improper where the officer reached directly into the defendant's pocket "knowing full well that no weapon was there . . . [the officer] believed the lump (in defendant's pocket) to be cocaine and intended to retrieve it" - cocaine admissible, however, as it would have been inevitably seized following defendant's valid warrantless arrest); United States v. Rivera, 738 F. Supp. 1208 (N.D.Ind. 1990) (motion to suppress granted where officer reached into defendant's pocket solely to retrieve contraband). Moreover, there was no indication in St. Onge's testimony that he had received any later trustworthy information connecting Clark with narcotics possession on March 4, 1992. The fact that he was, at the time of the search, on a public sidewalk near a house where a search warrant for possible narcotics had been executed does not alter this conclusion, absent any indication directly associating him with criminal activity in the house.
In Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), officers equipped with a search warrant authorizing a search of a tavern and its bartender for narcotics entered the tavern and proceeded to pat down the tavern's patrons for weapons. Subsequently, after noticing what felt like a cigarette pack, one officer reached into the defendant's pocket and retrieved packets containing heroin. The Court held that the search and seizure of the defendant contravened the Fourth Amendment as, regardless of the fact that the officers possessed a valid search warrant to search the tavern and its bartender, the defendant was not named as a target in the warrant, and, therefore, there was no probable cause to search the defendant. The Court stated that:
Where the standard is probable cause, a search or seizure of a person must be supported by probable cause to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.