Opinion
No. 01 Cr. 274-01 (RWS)
January 31, 2003
SENTENCING OPINION
Defendant Carlos Alberto Troche ("Troche") pleaded guilty before Magistrate Judge Ronald L. Ellis on April 12, 2002 to conspiracy to transfer about $500,000 in cash, which was the proceeds of illegal narcotics transactions, in violation of 18 U.S.C. § 1956(h). For the reasons set forth below, Troche's sentence will consist of 51 months in federal custody, to be followed by a three-year term of supervised release, subject to the sentencing hearing now set for February 5, 2003 before this Court. A special assessment fee of $100 is mandatory and will be due immediately.
The Defendant
Troche declined to participate in a presentenc interview and the following information was gleaned by probation officers from the pretrial records and other public authorities in Puerto Rico. Although it is known that Troche is not who he presented himself to be, his true identity remains unknown.
At the time of his arrest Troche related that he was born on January 29, 1966 in Puerto Rico. His parents, Juan Alberto Troche and Ines Martinez had two other children, and all reside in Puerto Rico. Troche related that he is married. He is estranged from his wife and has no children.
A July 23, 2002 inquiry using Troche's name and social security number resulted in the discovery that Troche has a record for first degree murder, kidnaping, robbery, escape, and weapons violations, and is currently serving a 190 year sentence for murder at the Guayama Correctional Facility in Puerto Rico.
A subsequent interview on October 31, 2002 of Troche's mother, Ines Martinez, conducted by probation officers, confirmed that the real Troche is incarcerated in Puerto Rico since 1985, and is a white Hispanic male.
Public records indicate that Troche established his identity as Troche in New York City in April 1995. Probation officers have been unable to establish defendant's true identity.
According to defendant Troche's criminal record, he stands 5'8" tall and weighs 210 pounds. He has black hair and brown eyes, a scar on the right side of his face and his left leg is amputated (replaced by a prosthesis)
Troche related no mental health problems and drug tests returned negative. Defendant has completed 11th grade. Troche reportedly had been working at First Class Taxi Limousine for the past six years as a taxi driver, earning about $600 per week. Troche owns a 1999 Lincoln Town car for which he was paying $1,069 per month. He reportedly owed about $6,000 in credit card debt.
The Offense
Troche was arrested on November 4, 2000 by New York City Police Officers and other law enforcement agents who were conducting surveillance in the area of 72nd Street and Broadway in Manhattan. At around 8:30 p.m. the officers noted Troche driving a black Lincoln Town car as he circled the block several times speaking on a cellular phone. Troche appeared to be nervously looking for someone or something. He was observed to meet with an individual who remained outside the car. Officers approached the two, and the individual fled. A consensual search of Troche's truck produced a suitcase containing $500,000 in U.S. currency. Troche stated that he had been instructed by a livery customer to deliver the suitcase from Washington Heights to 72nd Street and that he believed it was the proceeds of criminal activity.
The Guidelines
The 2000 edition of the United States Sentencing Guidelines (the "Guidelines") has been used in this case per § 1B1.11(b)(1). The base offense level for the a violation of 18 U.S.C. § 1956 is found in § 2S1.1(a)(2) is 20. Because Troche knew that the laundered funds were the proceeds of an offense involving the manufacture, importation, or distribution of a controlled substance, three levels are added per § 2S1.1(b)(1). As the amount was $500,000, the offense level is increased three levels per § 2S1.1(b)(2)(D). Because Troche has, through his false identity claim, committed perjury which was material to his bail determination, and therefore obstructed justice, two levels are added per § 3C1.1 (Application Note 4(b), (c), (f) and (g)(h)). The adjusted offense subtotal is 28. Since Troche's true identity remains unknown, he will not be given a reduction for acceptance of responsibility since there are no "extraordinary" factors, as envisioned by § 3E1.1(1)(4), that warrant the reduction where there is also obstruction of justice.
According to Troche, his role was minimal in the enterprise, thus warranting a four-level downward departure pursuant to § 3B1.2(a). The Government has objected that Troche is not "substantially less culpable than the average participant," as required by § 3B1.2. Based on the facts of this case, Troche's participation does meet the required standard for the downward departure because the evidence suggests that it was the other participants who planned the operation which Troche helped execute. His conduct as a courier who did not devise the scheme, was not, as the Government asserts, as culpable as the average defendant in this context. The reduction results in a score of 24.
Troche has also requested a downward departure based on United States v. Restrepo, 936 F.2d 661, 667 (2d Cir. 1991), where the defendants were involved in packing and loading $18.3 million, an amount the defendants had no knowledge of, but which nonetheless "extraordinarily magnified" their offense level. In that case, the Second Circuit affirmed the district judge's decision to grant a further downward departure of four points. The equities that drove the Restrepo court are not at play here as the offense level is increased by three levels compared to the nine in that case. Moreover, in Restrepo there was no indication that the defendants had any knowledge of the amount of money, had any relationship to the money, or had any prior involvement. Troche was told he was transporting drug proceeds and had a strong sense how much money he was carrying (he suspected $100,000) and, in any event, he certainly knew he had a suitcase full of money. Troche was trusted with the transportation of $500,000, which suggests he had the confidence of the other members of the conspiracy. Accordingly, there is no departure warranted underRestrepo.
Troche has moved for a downward departure based on the fact that he has a prosthetic leg. He asserts that departure for extreme vulnerability in prison and for an extraordinary physical condition. Troche's condition does not warrant departure. Unlike the defendant in United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993), Troche does not require crutches to walk and he has not argued that he cannot use the bathroom or collect his food without assistance. Thus it is not apparent that Troche's condition makes him extraordinarily susceptible to abuse in prison. Troche also claims a downward departure based on his physical impairment itself, which, when extraordinary, can justify a downward departure. § 5H1.4, p.s. To qualify, they typically must be impairments that the prison system is unable to accommodate, which is not the case here. United States v. Altman, 48 F.3d 96 (2d Cir. 1995).
Defendant has no known criminal history points and thus has a Criminal History Category of I.
Based on a total offense level of 24 and a Criminal History Category of I, the guideline range for imprisonment is 51 to 63 months. If a term of imprisonment is imposed, the Court may impose a supervised release of not more than three years pursuant to 18 U.S.C. § 3583(b)(2).
The Sentence
Because of his minimal role in the conspiracy, Troche will be sentenced to 51 months imprisonment, to be followed by three years of supervised release. Troche is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Troche shall (1) not commit another federal, state, or local crime; (2) no: illegally possess a controlled substance; and (3) not possess a firearm or destructive devise.
Troche shall also abide by the standard conditions of supervision (1-13). In addition, as a special condition, Troche will comply with the directives of the Immigration and Naturalization Service and the Immigration laws.
No fine will be imposed due to Troche's lack of financial resources at this time. However, a special assessment fee of $100 will be due immediately.
This sentence is subject to modification at the sentencing hearing now set for February. 5, 2003.
It is so ordered.
U.S. v. RAMIREZ, (S.D.N.Y. 2003)
UNITED STATES OF AMERICA v. CRESCENIANO RAMIREZ United States District Court, S.D. New York No. 02 Cr. 1228 (GEL) January 30, 2003
Daniel W. Levy, Assistant United States Attorney, New York, New York (Karl Metzner. Assistant United States Attorney, James B. Comey, United States Attorney For the Southern District of New York, of counsel), for United States of America.
Mark B. Gombiner, Deirdre D. von Dornum, New York, New York, for Defendant Creseniano Ramirez.
OPINION AND ORDER
GERARD E. LYNCH, District Judge
Defendant Cresceniano Ramirez, who is charged in a single-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), moves for suppression of evidence obtained in the encounter with the police that led to his arrest. The Court held a factual hearing on the motion on December 11, 2002, and the parties subsequently submitted briefs. That the perfectly commonplace incident involved here requires intricate analysis speaks volumes about the difficulty of governing street encounters between police and citizens by case-specific, after-the-fact examination of the reasonableness of the police action. Having performed that analysis, however, the Court is persuaded that the officers here acted reasonably and within the bounds of law, and accordingly the motion for suppression of evidence will be denied.
Defendant was indicted under the name "Cresceniano Ramirez," but in pro se papers filed with this Court has spelled his name "Cresenciano Ramirez."
FINDINGS OF FACT
The following facts are based on the testimony provided at the hearing, and primarily on the account of the arresting officer. David Popowich, which the Court finds to have been generally credible and which is not substantially contested in the defendants briefing and argument.
At about 10:00 p.m. on September 2, 2002, Officer Popowich and Sergeant Hetor Lebron were patrolling in the vicinity of Wallace and Astor Avenues in the Bronx in an unmarked car. Officer Popowich had been assigned to this area for the entirety of the two and a half years since his graduation from the police academy. (Hearing Transcript of 12/11/02 ("Tr") at 4.) [n addition to his own observations in the area, he had attended numerous community meetings at which residents of the precinct presented police officials with their complaints or other information about crime in the community. (Tr. 6-7.) Based on these experiences, Officer Popowich considered the intersection "one of the busiest streets in the precinct," with a "lot of drug activity going on, a lot of disorderly youths, all quality of life crimes going on, always complaints." (Tr. 9-10.) He had been specifically advised by residents that there were open drug sales on that corner (Tr. 10), and several people had described to him by physical features and typical dress a particular individual who regularly engaged in selling drugs there. (Tr. 7-8.) Although shortages of manpower prevented the regular assignment of officers to intensive observation of that particular spot. on this occasion, which was the Labor Day holiday. additional officers had been called out for parade duty. After the uneventful termination of he parade. officers were assigned to target high-crime areas such as the street in question. (Tr. 8-9.)
As he drove slowly along Wallace Avenue towards Astor, Officer Popowich saw a man matching the description he had received of the drug dealer allegedly operating at that location, later identified as Ameal McLean. Two other men were with McLean. One man was standing to McLean's right, and the other, who appeared to be Hispanic and who turned out to be defendant Ramirez, was facing McLean with his back to Officer Popowich. McLean had "his left arm extended out in a closed fist toward [the] male Hispanic, and the male Hispanic had his right hand out with a closed fist and a black plastic shopping bag in his left hand." (Tr. 12-14.) The officer could not see what, if anything, was in the men's hands. (Tr. 15.) When McLean "made eye contact with" the approaching officers, he "[said] something to the individuals, and both of their hands came down." (Id.)
Officer Popowich then stopped his car near the men, and he and Sergeant Lebron exited the car and approached them. As the officers approached, Ramirez dropped the bag he was holding and started to move away. While Sergeant Lebron turned to the other two men, Officer Popowich approached Ramirez and asked what was going on. Ramirez (who apparently does not speak English) did not answer, but "looked like he was a little nervous." (Tr. 21.) The officer "reached out my hand where his left arm was down and started to pat him down to find out what he had on him, what was going on. And in his left front pocket with my left hand I felt a bullet." (Tr 21-22.)
The details of how Officer Popowich "felt a bullet" were thoroughly explored on direct and cross-examination. The officer, who in his career in the police department and through prior military service has extensive familiarity with arm and ammunition (Tr. 22, 53), clearly and repeatedly testified that he felt the bullet from outside Ramirez's pocket while patting him down, and did not find the bullet by reaching into the pocket. (E.g., Tr. 22, 47) Officer Popowich did not require Ramirez to stand up against a wall or car and assume a spread-eagled position with his back to the officer; rather, he simply reached out with his left hand across his body to pat the outside of Ramirez's left pocket. angling his own body with his right side and gun away from the suspect and his right hand near his gun. (Tr. 44-45.) He had been trained at the police academy to perform frisks by means of "the basic pat and a slight squeeze." (Tr. 44.) t Through the fabric he felt a small object, "r[a]n [his] fingers across it and squeeze[d] it." (Tr. 47-48.) At that time. he was "90 percent sure it was a bullet." (Tr. 49.) The entire process leading to the identification of the bullet took a "[s]econd or two: not long." (Tr. 22.)
The transcript records one sentence, out of the many answers Officer Popowich gave describing his procedure in great derail, in which the officer says "I reached in his pocket." (Tr. 45.) This statement was made while in the course of physically demonstrating on the body of defense counsel what he did to Ramirez. As the Court immediately noted on the record, that statement was not an accurate description officer what the officer was doing; rather, reaching" for his pocket," as the Court stated, or "at his pocket as the officer corrected himself, constituted a "fair description" of what the witness actually did in the courtroom. (Id.)
After feeling the bullet, Officer Popowich "moved it a little just to make sure what it was," then "started to pull his pocket inside out" by working the fabric from the outside. (Tr. 22.) The officer did not reach into the pocket even at this point, out of concern for his own safety against the possibility of sharp objects in the pocket, but worked the fabric until the bullet was visible, whereupon he seized it and put it in his own pocket. This entire process took only a few seconds. (Tr. 22-23.)
After finding the bullet, Officer Popowich asked Ramirez "where is the gun, do you have a gun?" Receiving no response, but seeing Ramirez put his right hand in his right pocket. the officer "got scared," reached over and grabbed Ramirez's wrist, and pushed him over to the police car. (Tr. 23.) While asking Ramirez what he had in his pocket, and still receiving no response, he pulled or "guided" Ramirez's hand out of his pocket, and when "his whole hand came out." Ramirez "opened up his hand and threw something," which turned out to be another bullet, on the ground. (Tr. 24.)
After handcuffing Ramirez, ascertaining that Sergeant Lebron was safely dealing with McLean and the other man, and calling for additional reinforcements. Officer Poppowich went to look at the black plastic bag Ramirez had been holding, and found that it contained several bottles of beer and a gun. (Tr. 25-26.) These materials were seized. A subsequent search of Ramirez incident to arrest yielded nothing beyond his wallet and some loose bills in the front pockets of his pants. (Tr. 26-27.) Sergeant Lebron, meanwhile, had arrested McLean who was found in possession of packages of crack and cocaine. (Tr. 27-29.)
Cross-examination of Officer Popowich disclosed that in various police reports he had provided inconsistent accounts of the particular pockets in which the bullets had been found (Tr. 29-30, 35-36, Gov't Exhibit ("GX") 3501-D, GX 5), and that in a complaint prepared by the Bronx District Attorney, the officer had testified to having seen Ramirez with bills in his hand, an observation he disclaimed at the hearing. (Tr. 30-31, GX 3501-G.) Such minor inconsistencies. unfortunately, are all too common in police reports. Moreover, the officer's inconsistency regarding seeing money in Ramirez's hand does not undermine his credibility. Officer Popowich did not add a convenient detail to his testimony in response to the suppress on motion: rather, he admitted at the hearing that the actual facts are less favorable to the prosecution than the version contained in an incautiously-drafted affidavit that incorporated an assumption rather than an actual observation. The alleged contradictions thus do not discredit Officer Popowich's testimony, and Ramirez does not seriously argue that his testimony is false.
DISCUSSION
Ramirez argues that the frisk that turned up the bullet in his pocket was unreasonable because (1) there was insufficient reason to believe that he was armed or dangerous to justify any frisk at all; and (2) even if there was sufficient reason, the frisk exceeded the bounds of a proper frisk. (Def's Ltr-Br. of Dec. 20, 2002, at 1.) The government. in addition to disputing these arguments, contends that these issues need not be reached, because the evidence in question would inevitably have been discovered in searches following the arrest of Ramirez that would have occurred after drugs were found on McLean's person. (Gov't's Post-Hr'g Mem. at 3.) The Court concludes that the seizure resulted from a lawful frisk, and accordingly denies the motion.
Whether because of the subtlety of Fourth Amendment law, or simply because "[ejach case of this sort, will, of course, have to be decided on its own facts," Terry v. Ohio, 392 U.S. 1, 30 (1968), even such a routine street encounter can present interesting questions about the legality of the frisk and resulting seizure. Contrary to the government's view, however, those questions may not be evaded by use of the inevitable discovery doctrine. As the Second Circuit recently restated that doctrine, "Under the "inevitable discovery' doctrine, "evidence that was illegally obtained will not be suppressed "if the government can prove that the evidence would have been [lawfully] obtained inevitably" even if there had been no statutory or constitutional violation.' United States v. Roberts, 852 L2d 671, 675-76 (2d Cir), cert denied, 488 U.S. 993 (1988) (quoting Nix v. Williams, 467 U.S. 431. 447 (1984))." United States v. Mendez, No. 02-1100, 2002 WL 31889585 at *5 (2d Cir. Dec. 30, 2002). The bracketed addition. inserted by the Court in Mendez, is significant, and simply restores to this particular formulation a concept that was part of the rule from the beginning. See Williams, 467 U.S. at 444 (evidence obtained in illegal search can be introduced if "the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means"). The government obviously may not justify the use of illegally-seized evidence by contending that the evidence would eventually have come into its possession through some other illegally-seized evidence, which the defendant might not have standing to challenge. Rather, the point of the inevitable discovery rule is that even though an officer might have violated a suspect's rights. there is no justification for suppressing the resulting evidence if it would have been discovered in any event through entirely lawful investigative steps. In other words, the district court must determine if the evidence would have been lawfully discovered had the unlawful search never occurred. See United States v. Eng, 997 F.2d 987, 990 (2d Cir. 1993),cited in United States v. Cabassa, 62 F.3d 470, 473 (2d Cir. 1995). The classic example is a premature warrantless search of premises for which the police are in the process of obtaining a search warrant that was granted without the use of any illegally seized evidence, which would have led shortly thereafter to the very same search that produced the evidence See e.g., Cabassa, 62 F.3d at 473-74; United States v. Whitehorn, 829 F.2d 1225 (2d Cir. 1987).
In this case, the government attempts to justify the seizure from Ramirez on the grounds that the same seizure would inevitably have followed the arrest of McLean. But the arrest of McLean followed from the discovery of narcotics on his person in a search that closely resembled that of Ramirez. That search may very well have been entirely lawful, but the analysis of the circumstances of McLean's frisk would be no easier than that concerning the frisk of Ramirez, particularly on a record that understandably devotes much more detail to Officer Popowich's interaction with Ramirez than to Sergeant Lebron's similar simultaneous encounter with McLean. There is thus no reason to attempt to avoid the principal issue litigated by the parties.
The officers had reasonable suspicion justifying a stop of McLean and Ramirez; Ramirez does not seriously argue otherwise. Officer Popowich had been informed by several people that someone matching McLean's description conducted open drug sales at the location in question Although the officer did not know the names of those "who had provided the information, these were not mere anonymous tips, but face-to-face communications at police-community meetings. which thus bore a greater degree of reliability. McLean, Ramirez and a third individual were standing and gesturing in a configuration consistent with a narcotics sale by a seller (McLean) accompanied by a lookout (the third man) to a purchaser (Ramirez). of course, the three men could have been engaged in any number of innocent types of interaction, and the Court does not suggest that the officers' knowledge amounted to probable cause to arrest anyone. But the officers had articulable grounds to suspect that a drug sale was taking place, and they would have been remiss not to have approached the men to investigate further.
Ramirez contends, however, that the officers did not have sufficient grounds to frisk him. He rightly points out that despite the popular linkage of the terms "stop" and "frisk," the two concepts are not interchangeable. A reasonable suspicion justifying a stop and inquiry by the police will not invariably justify a protective search for weapons. In Terry, the Supreme Court separately addressed the justification for the "stop" and that for the "frisk" iinvolved in that case. As the Court recognized, "When an officer is justified in believing that the individual ".". hose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or no others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." 392 U.S. at 24. The rule is thus clear that a frisk requires independent justification, in the form of a reasonable suspicion that the person being confronted is "armed and presently dangerous to the officer or to others."
In assessing whether such suspicion exists, it is important to recall that every case must be decided on its particular facts. Ramirez attempts to deduce a rule that suspects may be considered armed and dangerous, without particularized information based on the officer's observation or knowledge of the individual defendant, only "where the crime itself is one for which the defendant would likely be armed" (Def.'s Ltr-Br. of Dec. 20, 2002, at 4), and further that such offenses include various violent crimes and "large-scale trafficking in illegal drugs." Id., quoting United States v. Scott, 270 F.3d 30, 41 (1st Cir. 2001). [n contrast, citing cases outside this Circuit, Ramirez argues that no inference of danger may be drawn from the fact that an individual is suspected of buying personal use quantities of narcotics. Id.
Perhaps it would be preferable if the police were given clear general rules categorically authorizing frisks of some suspects and not of others. See generally Craig M. Bradley, The Failure of the Criminal Procedure Revolution (1993) (arguing that piecemeal, case-by-case development of police procedure rules leads to complex, cumbersome law and that a statutory code of police procedure would be preferable). But the law as it stands does not readily admit of such broad rules. The Supreme Court and the Second Circuit have repeatedly warned that in determining the legality of officers' conduct in stop and frisk situations, "the court is required no look at the totality of the circumstances," United States v. Salazar, 945 F.2d 47, 50 (2d Cir. 1991) (citing Supreme Court cases), rather than to refer only to the nature of the crime suspected.
Nevertheless, the nature of the criminal activity potentially afoot is clearly a highly relevant circumstance. The Second Circuit has recognized that an experienced police officer should be aware that "narcotics dealers frequently carry weapons." Salazar, 945 F.2d at 51. Contrary to Ramirez's suggestion, this observation has not been limited to drug kingpins or major dealers. In Salazar itself, there was no indication that the defendant was a major dealer, and the Court referred to drug dealers in general, Citing in support language from United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987), to the effect that firearms are "tools of the trade" of "substantial dealers in narcotics" (emphasis added). Salazar, 945 F.2d at 51. The Court's glide from substantial dealers to dealers in general hardly suggests that the Court was adopting a firm rule that distinguishes sharply between participants in the drug trade based on their precise role in the traffic.
Nor is it clear that such a distinction would be viable. In the nature of the street interactions at issue, given the uncertainty of the situation and the limited information that might give rise to a reasonable suspicion, it will not always be clear to the officers exactly what kind of criminal conduct they are investigating, or what role specific individuals might be playing in the crime. The officers here apparently subjectively believed that Ramirez was a customer of McLean, a known street dealer. Perhaps. if the officers had information specifically identifying Ramirez as a drug user who had just purchased a vial or two of crack from a street dealer, and confronted him alone, the suspicion that the subject had purchased drugs would not by itself warrant an inference that he was armed. But the information available to the officers was both less and more than that. Less, in that the officers really had no way of knowing what role Ramirez might be playing in the transaction. Whatever their subjective hunch or belief as to what he was doing, what the evidence actually showed was only that a known drug dealer was engaging in a hand to hand transaction with someone on the street. Perhaps that person was simply a customer, or perhaps he was a courier bringing drugs or picking up money from the dealer. It would thus be overly simplistic to identify Ramirez simply as "a minor drug purchaser. and therefore likely unarmed," on the basis of what was known to the officers.
Moreover, the government here does not argue that a frisk was reasonable simply because the officers had encountered someone who had purchased drugs; the "totality of the circumstances" included more facts than that. The interaction took place at night. at a location that was known not only for drug sales but also for disorderly conduct and other quality of life offenses. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (characteristics of location relevant in determining whether suspicion was reasonable). In addition, the two officers were dealing not with Ramirez alone, but also with two other individuals, one of whom was specifically suspected as a narcotics dealer. The situation was thus potentially more volatile than a stop of a single individual believed to have purchased drugs. Finally, Ramirez reacted in a nervous manner, acting like someone who "was trapped, and . . . didn't know what to do," and failed to respond to Officer Popowich's questions. (Tr.42-43.) Courts have frequently noted these as factors that are relevant in assessing whether a protective frisk is justified. See, e.g, Wardlow, 528 U.S. at 124 (recognizing that "nervous evasive behavior is a pertinent factor in determining reasonable suspicion"); United States v. Taylor, No. 01 CR 0576 2002 WL 193573, at *4 (S.D.N.Y. Feb. 7, 2002) (stepping away from officer and failure to respond to question about weapons supported legality of frisk).
With the benefit of hindsight, it can be inferred that Ramirez did not respond because he could not speak English. But Officer Popowich could not have known that at the time.
The Second Circuit has approved protective action even in cases where there was a reasonable suspicion that the subject of the frisk had simply purchased narcotics, where the totality of the circumstances indicated that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990), quoting Terry, 392 U.S. at 27. Here, the Court agrees with the government that where a police officer reasonably suspects that he has interrupted a drug sale or other narcotics-related transaction in progress, at night on a New York City street in a location noted for narcotics activity and disorderly behavior, and the officer and a single colleague are faced with three suspects, one of whom has acted nervously and failed to respond to the officer's questions, a prudent officer behaves quite reasonably in undertaking a limited pat-down search to detect any weapons that could harm the officer, his partner, or members of the public.
Alexander is not on all fours with the present case. The seizure and search there were far more intrusive, including a guns-drawn car stop that the defendants quite reasonably argued was so dramatic and forceful as to constitute an arrest. The Court found that the forcible frisk was justified by evidence that the defendants had just made a drug purchase in a drug-infested location and had engaged in dangerous or evasive driving Id. at 271-73. On the one hand, the Court noted that the purchase was apparently larger than could have been made from a street seller like McLean. and also noted the enhanced risks involved in stopping a vehicle. On the other hand. The intrusiveness and forcefulness of the stop were much greater than the police action here. As always, the totality of the circumstances is what controls, and each case must be decided on its own terms. The point is that there is no categorical rule that suspicion that a person has just purchased drugs may not contribute to a concern that a suspicion is armed or dangerous.
Ramirez also argues briefly that the search was not a legitimate weapons frisk because the officer testified at one point that he initiated the frisk because he wanted "to find out what he had on him, what was going on." (Tr. 22.) The Court finds. however, that in context, the officer meant that he was concerned about what if any weapons Ramirez might have had on him, as he explicitly testified on cross-examination. (Tr. 47) ("No, not what was going on, for my safety. Once everything is clear to my safety, that's when I do my interview.")
Finally, Ramirez argues that the search here exceeded the scope of a legitimate "frisk, in that the officer "squeez[ed] and manipulat[ed] the small object he felt in Mr. Rarmirez's pocket even though it was or should have been apparent that the object was not a gun. (Def.'s Ltr-Br. of Dec. 20, 2002, at 5.) Acknowledging that the officer was entitled to seize any contraband whose identity was apparent from "plain feel." Ramirez argues that this case is controlled by Minnesota v. Dickerson. 508 U.S. 366 (1993), in which the Supreme Court invalidated the seizure during a weapons frisk of a package of cocaine that was identified by the officer only after "squeezing, sliding, and otherwise manipulating the contents of the defendant's pocket." Id. at 378. This claim too must fail.
As the Second Circuit recently pointed out in United States v. Casado, 303 F.3d 440, 449 (2d Cir. 2002), although the line between reasonable and unreasonable police behavior is sometimes fine, and borderline cases will arise in which the classification might seem arbitrary, inevitably a line must be drawn, and occasionally fine distinctions will have "constitutional significance." In Casado, the line was between patting the exterior of a pocket and reaching into it; in Dickerson, as in this case, the line is between an officer's discovery during a pat-down frisk of contraband "whose contour or mass makes its identity immediately apparent," 508 U.S. at 375, and an officer's engaging in a tactile search by a process of investigatory manipulation to determine the identity of an object already determined not to be a weapon.
This line can be exceedingly fine, and the distinction can turn on the time taken to make a decision and the specific actions undertaken by the officer. As the government points out, Terry and Dickerson must contemplate the permissibility of some form of "tactile exploration" of an object encountered during a frisk. (Gov't's Post-Hr'g Mem. at 8.) Otherwise, how could an officer ever appreciate the "contour and mass" of such an object. 508 U.S. at 375, in order that its identity could become "apparent"? In other words, an object must first be felt in order to identify its shape and size; what Dickerson prohibits is a more extended manipulation.
Here, Officer Popowich testified credibly that he identified the object he felt in Ramirez's pocket as a bullet in a "second or two." (Tr. 22.) Both in direct testimony and under extensive cross-examination, the officer consistently stated that he "felt a bullet" (Tr. 22); that "after I felt it, I moved it a little just to make sure what it was" (id.); that as he had been trained to do in the Police Academy, he used the technique of "the basic pat and a slight squeeze" to identify weapons during a frisk (Tr. 44); that he "r[a]n my fingers across it and squeeze[d] it" to determine what it was (Tr. 48); that after doing so he was "90 percent sure it was a bullet" (Tr. 49); and that at that point he "knew it was a bullet" (Id.). These statements are consistent, credible, and convincing.
No doubt a metaphysician could draw distinctions between "immediately" knowing something, knowing it after a "second or two," being 90% certain of something after running one's fingers across it, and knowing for certain after squeezing it. But such distinctions would serve little purpose here. What the officer testified to, and what the Court believes, is that. unlike the officer in Casado who reached into a suspect's pocket, the officer here felt the outside of the pocket, using the "pat and slight squeeze" method to identify the size and shape of objects that might be weapons, and felt an object that he immediately recognized as a bullet by its size and shape, squeezing it or rolling it only for a second or so to verify what he understood from the first. This is quite distinguishable from an extended effort to manipulate, palpate, and ponder an object in order to determine whether it was likely to be a package of narcotics — an item that lacks the distinctive shape. size and mass of a round of ammunition.
Officer Popowich testified that it is not his practice to reach into a pocket for fear that a suspect would have sharp objects such as "syringes, razor blades . . . [or a] crack pipe" in his pocket. (Tr. 22-23.) Thus, even after identifying the bullet, he did not reach it to pull it out, but rather worked it out of the pocket from the outside, without reaching in.
It is worth emphasizing here that Officer Popowich was especially well qualified to identify ammunition, having handled "thousands" of rounds not only in his weapons training as a police officer, but also during his eight years of military service. (Tr. 53.)
The Second Circuit confronted similar testimony in United States v. Rogers, 129 F.3d 76, 80 (2d Cir. 1997), where an officer "grabbed [an] object in Rogers' pocket, manipulated it for a few seconds, and concluded that it was probably drugs." The Court distinguished the case from Dickerson, finding that this testimony supported a finding that "[t]he incriminating character of the object was therefore "immediately apparent."' Id. The same is true here.
Thus, the officer lawfully stopped Ramirez because he reasonably suspected criminal activity, reasonably determined that a frisk was necessary for his safety, and did not exceed the scope of a weapons frisk in discovering a bullet by "plain feel." Upon discovering the ammunition, Officer Popowich had probable cause to place Ramirez under arrest, whereupon he could lawfully search the bag containing the gun incident to that arrest.
CONCLUSION
For the reasons set forth above, the motion to suppress evidence is denied.
SO ORDERED.