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. § 922(k).
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).
In addition, the officer may then frisk the individual for weapons if the officer reasonably believes that person to be armed and presently dangerous. See Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); Terry 392 U.S. at 21-24, 27; see also Glover, 957 F.2d at 1009.
Circumstances giving rise to sufficiently "specific and articulable facts" to warrant a stop and patdown include: exhibiting suspicious behavior such as watching a store in preparation for robbing it, see Terry, 392 U.S. at 6-7; appearing to be driving while intoxicated, see Michigan v. Long, 463 U.S. 1032, 1050, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983); owning or occupying private premises for which a search warrant has been obtained, see, e.g., Michigan v. Summers, 452 U.S. 692, 702-04, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981) (officers executing warrant for search of house may detain resident for duration of search); Rivera v. United States, 928 F.2d 592, 606-07 (2d Cir. 1991); United States v. Vigo, 487 F.2d 295, 298 (2d Cir. 1973) (upholding protective search of purse of passenger in car of person being arrested); or entering onto private premises while an authorized search is in progress, see, e.g., United States v. Salazar, 945 F.2d 47 (2d Cir. 1991) (upholding patdown of an individual who, inter alia, matched informant's description of narcotics dealer and entered premises from which informant said drugs were being distributed).
The Supreme Court has declined, however, to extend the Terry doctrine to a defendant who was stopped in a public place and who had no known connection to a person at that location whom the officers had articulable grounds to suspect of wrongdoing. See Ybarra, 444 U.S. at 92-96; see also United States v. Jaramillo, 25 F.3d 1146, 1152-54 (2d Cir. 1994) (finding patdown of unsuspicious person present in bar during raid of the bar unjustified under Terry and its progeny).
Cooper argues that the search of his person was unconstitutional and that the gun seized from him should be excluded on the authority of Ybarra and Jaramillo. More specifically, Cooper argues that the officers had (1) no particularized probable cause to suspect him of criminality, (2) no specific and articulable facts on which to reasonably suspect him of wrongdoing, and (3) no articulable reason to suspect that he posed a danger to the officers on the scene. Conceding that the issue raised by Cooper is a close one, and that "at first blush [this authority] appear[s] to lend substantial support to his position," the government argues that Ybarra and Jaramillo are distinguishable from the instant case in critical respects, and that "existing case law and strong policy considerations support the constitutionality of the limited protective pat-down of the defendant here." (Gov't Mem. at 6). In light of these arguments, a close reading of Ybarra and Jaramillo is warranted.
In Ybarra, law enforcement officers had received information from a previously reliable informant that a particular bartender at the Aurora Tap Tavern was selling heroin from the bar, and they obtained a warrant authorizing the search of the tavern and that bartender. In executing the warrant for the tavern, the officers conducted patdown searches of each of the approximately one dozen customers present at the time, including Ybarra. An Illinois statute authorized officers executing such a warrant to search any person on the premises to protect themselves from attack or to prevent the disposal or concealment of items described in the warrant. The first patdown of Ybarra revealed that he was carrying what felt to the officer like "'a cigarette pack with objects in it,'" Ybarra, 444 U.S. at 88 (quoting officer's testimony); shortly thereafter, a second search of Ybarra was conducted, the pack was seized, and it was found to contain a substance later determined to be heroin.
The State argued generally that the Terry "reasonable belief or suspicion" standard should be applied to the evidence-gathering function of the search warrant. More specifically, the State urged that the search of Ybarra be upheld as constitutional on the grounds that it was conducted "on 'compact' premises subject to a search warrant" and the police reasonably believed that the persons searched were connected with drug trafficking and "'[could] be concealing or carrying away the contraband.'" Id. at 94.
The Supreme Court rejected the State's arguments and ruled that the search of Ybarra and the seizure of the contents of his pocket contravened the Fourth and Fourteenth Amendments. The Court explained its analysis as follows:
Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.
Id. at 90-91. Ybarra was not recognized as a person with a criminal history, nor did the police have any particular reason to believe he might assault them. Id. at 93. As the Court summarized:
Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. . . . In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.