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UNITED STATES v. COOPER

November 18, 1997

UNITED STATES OF AMERICA - v - THOMAS COOPER, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 On June 25, 1997, defendant Thomas Cooper was a patron in a small grocery store in the Bronx. Federal agents entered to execute a warrant that authorized a search of the premises for firearms. The agents saw Cooper standing near the counter and they decided, for security reasons, to pat him down. When they did so, they discovered a loaded revolver in his possession. They therefore arrested him.

 Cooper moves to suppress the firearm and his post-arrest statements on the grounds that the search was conducted in violation of his rights under the Fourth Amendment to the United States Constitution. Cooper contends that the agents had no reasonable basis for suspecting that he had committed, was committing, or was about to commit an offense. The government argues that the search was a constitutionally permissible patdown undertaken as a reasonable protective measure. For the reasons that follow, I conclude that the circumstances relied on by the government to justify the search of Cooper were insufficient. Accordingly, Cooper's motion is granted and the firearm as well as his post-arrest statements are suppressed.

 THE FACTS

 The undisputed facts are as follows. *fn1" On June 24, 1997, federal agents received information from a confidential informant regarding the unlawful storage, distribution, and use of firearms at the "24-Hour Deli," a small grocery store in the Bronx. The confidential informant had previously provided reliable information to the police, including information that led to three arrests and indictments and seizures of stolen motor vehicles.

 The confidential informant told police that two days earlier, on June 22, 1997 at 2:30 a.m., three unidentified men entered the 24-Hour Deli. One of the men motioned with his hand to an unidentified store employee standing behind the counter, with a gesture that appeared to simulate pulling the trigger of a gun. In response, the store employee reached below the counter, removed three firearms, and handed them to the three men.

 Armed with the three firearms, the three men left the grocery store. One of the men fired shots at another group of men down the street. The three men then re-entered the grocery store, and returned the three weapons to the unidentified employee behind the store counter. The store employee then returned the firearms to an area behind the counter that appeared to be the same location from which he had earlier removed them.

 The confidential informant described the three firearms as a semi-automatic assault weapon and two semi-automatic pistols. His information regarding the firearms transaction at the grocery store was corroborated by two independent reports to the police, both made at 3:15 a.m. on June 22, 1997, of a shooting in the vicinity of the grocery store.

 Based on this information, federal agents obtained a search warrant from Magistrate Judge Leonard Bernikow on June 25, 1997 at 6:23 p.m., authorizing a search of the "24-Hour Deli" located on the ground floor at 2801 White Plains Road, Bronx, New York, for semi-automatic assault weapons and any other evidence of federal firearms violations.

 On the evening of June 25, 1997, agents of the Federal Bureau of Investigation and officers of the New York Police Department executed the search warrant at the grocery store. According to the complaining agent, the law enforcement officers conducted a "security sweep" upon entering the store. At the time, Cooper was standing near the front of the store, next to the front counter. The officers detained Cooper, patted him down, and recovered from him a .38 caliber Rossi revolver, loaded with five rounds of ammunition. The serial numbers had been obliterated from this firearm.

 Cooper was one of four patrons in the store, all standing near the front counter. Cooper was closest to the counter. The officers conducted the same patdown of the other three individuals, but no contraband was found on them. Nor did execution of the search warrant uncover any weapons behind the store counter. A handgun was found, however, in a suitcase in the basement of the store.

 After his arrest, Cooper was advised of his constitutional rights. He waived his rights and stated, in substance, that he owned the gun and was carrying it for his own protection. He further stated that after purchasing the gun, he noticed that the serial numbers had been scratched off.

 On June 26, 1997, Cooper was charged in a complaint with possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. ยง 922(k).

 DISCUSSION

 A. Applicable Legal Standards

 1. Terry Stops

 The Fourth Amendment prohibits only unreasonable searches and seizures. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989); see also United States v. Blue, 78 F.3d 56, 59 (2d Cir. 1996). In determining the reasonableness of a search, a court balances the intrusion on an individual's privacy interests against the government's interest in conducting the search. See Maryland v. Buie, 494 U.S. 325, 331, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990). While a search generally may not be conducted without a warrant issued upon probable cause, in some circumstances neither a warrant nor probable cause is required. Id.

 The Terry case created one such exception to the probable cause requirement, "an exception whose narrow scope [the Supreme Court] has been careful to maintain." Ybarra v. Illinois, 444 U.S. 85, 93, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979) (internal quotations omitted). Under Terry and its progeny, an investigating officer may briefly detain an individual for questioning so long as the officer has "a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot'." United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)). Such a limited stop does not offend the Constitution, even though probable cause for arrest may be lacking. See United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992). *fn2" In addition, the officer may then frisk the individual for ...


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