On Appeal From the United States District Court For the Eastern District of New York.
Appeal from a judgment of conviction for possession of a firearm by a convicted felon. The United States District Court for the Eastern District of New York, Nicholas G. Garaufis, J., adopting recommendations of Roanne L. Mann, United States Magistrate Judge, denied a motion to suppress after concluding that the stop and frisk of defendant by police was constitutional. Appellant challenges this ruling as well as trial rulings restricting his cross-examination of government witnesses.
The opinion of the court was delivered by: Keenan, District Judge
Argued: September 26, 2008
Before RAGGI and CALABRESI, Circuit Judges, and KEENAN, District Judge.*fn1
Defendant-appellant Hector Padilla appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Garaufis, J.) after a jury trial for possession of a firearm as a convicted felon. Before trial, the district court concluded that police had reasonable suspicion to stop and frisk the defendant pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and denied defendant's motion to suppress the handgun that was recovered. On appeal, Padilla challenges this conclusion. He also claims that the district court abused its discretion and violated his Fifth and Sixth Amendment rights with trial rulings that he claims curtailed his cross-examination of government witnesses. We affirm for the reasons that follow.
A. The Suppression Motion
Around 8:15 p.m. on October 27, 2006, NYPD Detective Brendan O'Brien and his partner were sitting in an unmarked car conducting surveillance of a Staten Island apartment building that they had reason to believe was being used in the sale of narcotics. O'Brien had approximately nine years of experience in the NYPD, two-and-a-half of which were spent on narcotics detail in Staten Island. The apartment building under surveillance was located near the intersection of Boyd and Cedar streets in the neighborhood of Stapleton, an area known for its high rate of shootings and drug-and gun-related arrests. Two undercover NYPD detectives were fatally shot in this neighborhood in March 2003.
From the car, O'Brien observed a skinny, white male walking in the middle of Boyd Street toward the intersection where the apartment building is located. Based upon the man's skinny and "disheveled" appearance, and the fact that he was a white man in a predominantly African American neighborhood, O'Brien believed that he might have been a drug user on his way to the surveilled building to buy drugs. Instead of turning left on Cedar street toward the building, however, the disheveled man continued straight on Boyd street, crossing Cedar toward a wooded pathway where Boyd ends.
At this point, Det. O'Brien noticed two other men who appeared to be following the disheveled man. One of the two who were following was the defendant, Padilla. The two men were walking together in single file and without speaking in the same direction along Boyd street, twenty feet behind the disheveled man. There was no one else around. From the manner in which the two men were walking, in single file while remaining directly behind the disheveled man, it appeared to Det. O'Brien that they were trying to avoid the man's peripheral vision so that he would be unable see them were they to approach from behind.
The two men continued across Cedar street, staying behind the disheveled man and heading toward the same wooded path. O'Brien thought it was odd that the only persons on the street at that time would all choose to walk through an unlit wooded path in that high crime area after dark, instead of using the lighted sidewalks. He believed that a crime might possibly happen inside the wooded lot- either that the two men would rob the disheveled man, or that the three would engage in a drug transaction.
With his suspicions aroused, O'Brien drove around the block to observe whether the three men exited the path or remained in the wooded area. It took O'Brien approximately thirty seconds to circle the block. On the other side, he saw that the two men had caught up to the disheveled man, and the three had exited the path and appeared to be walking as a group. Although O'Brien did not think that the two men already had robbed the other in that short span of time, he believed that a robbery still might occur. He testified that he still thought [the robbery] could possibly be taking place; that they had got up close to him now and where [the wooded path] exits there, Gray Street, I said it comes, turns to Gordon Street, there also is a very wooded lot right there also, maybe you could say desolate, [the robbery] can happen as they exit also.
O'Brien also testified that a drug deal could have happened in the thirty seconds it took the men to walk across the lot. According to O'Brien, the fact that the three men had crossed the lot and were exiting it as a group thirty seconds after entering neither increased nor decreased his suspicion about whether criminal activity was afoot.
As O'Brien was pulling up in the car, from about fifty feet away from the men, he observed Padilla reach underneath his jacket and shirt, adjust something in the center of his waistband, and continue walking. Although O'Brien could not make out the dimensions of the adjusted object, it appeared to have some weight to it because of the way it shifted and the way Padilla moved his hand. From O'Brien's police experience, he recognized the movement as consistent with the adjustment of a gun lodged in one's waistband. O'Brien testified that he knew that firearms commonly are concealed in the waistband and that, when they are, they require readjustment because they shift and become uncomfortable. O'Brien previously had made eight to ten arrests where persons observed to make the same gesture turned out to be carrying guns in their waistbands. He also had become accustomed on an almost daily basis to seeing his fellow officers make the same movement to adjust concealed firearms carried by them. Although O'Brien realized at the time that Padilla could have been adjusting something other than a firearm, he did not recognize the gesture as being consistent with any innocent explanation.*fn3
Still suspecting that a robbery or drug deal might take place, and now believing that one of the two followers might be armed, O'Brien pulled the car in front of the three men. He and his partner got out without guns drawn and instructed the men to place their hands on the vehicle. O'Brien immediately patted down the exterior of Padilla's clothing near his waistline. Feeling a hard object shaped like a gun, O'Brien reached ...