U.S. v. McKOY

402 F.Supp.2d 311 (2004) | Cited 2 times | D. Massachusetts | December 9, 2004

MEMORANDUM AND ORDER

Defendant Omar Sharif McKoy, accused of possession with intentto distribute cocaine base and possession of cocaine base withintent to distribute within 1,000 feet of a school in violationof §§ 841(a)(1) and 860(a), moves to suppress drugs seized by thepolice during an encounter with police on February 6, 2003. Ifind that the pat frisk search of McKoy conducted during aninvestigatory stop for a traffic violation was not supported byreasonable suspicion that he posed a threat to the officers'safety. I will therefore allow the motion to suppress.

I. FINDINGS OF FACT

Having afforded the parties a full opportunity to develop therecord in this matter, I find the following. On the afternoon ofFebruary 6, 2003, Boston Police Sergeant Michael Stratton andOfficer Thomas Joyce were patrolling the Grove Hall neighborhoodin Boston in plainclothes driving an unmarked Ford. They believedthe neighborhood to be a high-crime area. At shortly after 4:00 P.M., Stratton and Joyce were driving downCheney Street approaching Maple Street. They slowed their vehicleas they approached Maple to watch for traffic and to survey thearea. When they came upon the intersection of Cheney and Maple,Stratton brought the car to a stop after seeing the defendant'svehicle parked with its front extending out into the intersectionblocking a handicapped ramp and with a license plate improperlydisplayed inside the windshield.

Stratton testified that Mr. McKoy "appeared startled" and"began to look from side to side, not looking back in ourdirection" after the two made eye contact. Joyce recounted themoment by testifying that he saw "a black male sitting in thedriver's seat. When he made eye contact with us, he looked away,began to act a little nervous, in my opinion, and we decided toinvestigate further." Stratton also recalled that McKoy leanedand moved his arm toward the console area when eye contact wasmade.

The two officers left their vehicle and approached Mr.McKoy.1 Upon approaching the vehicle, Sergeant Strattonsaw the defendant once again move his arm. Although he was not entirelycertain what McKoy was doing, Stratton testified that it lookedlike the defendant was putting something down. Joyce also saw thedefendant move at this stage. In response to this movement,Stratton said to Joyce "`[W]hat's he doing[?] [H]e's doingsomething,' or words to that effect." Joyce — who, according tohis testimony, was afraid for his safety — requested that thedefendant get out of the car2 and began to pat-frisk him.Not feeling any weapons in his waist area, Joyce moved to McKoy'spockets where he felt something that he believed to be a bag ofmarijuana. His interest piqued, Joyce — using street slang for a small bag of marijuana — asked "what do you have, a sack onyou?", or something to that effect, to which Mr. McKoy repliedaffirmatively and was placed under arrest. A search of the carproduced no further evidence. A search of McKoy's person resultedin the police seizing 5.63 grams of cocaine.

II. DISCUSSION

The Fourth Amendment protects "the right of people to be securein their persons, houses, papers, and effects, againstunreasonable searches and seizures. . . .," U.S. Const. amend.IV, and "[t]he question of whether an officer has reasonablegrounds to `stop' and `frisk' falls directly within the FourthAmendment's proscription against unreasonable searches andseizures." United States v. Walker, 924 F.2d 1, 3 (1st Cir.1991) (citing Terry v. Ohio, 392 U.S. 1, 16 (1968)).Nevertheless, police officers are permitted to conduct stopsbased on reasonable suspicion that criminal activity isafoot3 and to frisk the detained citizen if they have a reasonablebelief the person is armed. Terry, 392 U.S. at 30. "[W]herenothing in the initial stages of the encounter serves to dispelhis reasonable fear for his own or others' safety, he is entitledfor the protection of himself and others in the area to conduct acarefully limited search of the outer clothing of such persons inan attempt to discover weapons which might be used to assaulthim." Id.

This is not to say that officers are entitled to frisk anyonethey briefly detain. To have an adequate foundation for suchlimited searches, the officer "must have constitutionallyadequate, reasonable grounds for doing so." Sibron v. New York,392 U.S. 40, 64 (1968). "[The officer] must be able to point toparticular facts from which he reasonable inferred that theindividual was armed and dangerous." Id. When assessing theseparticular facts, courts are to consider the totality of thecircumstances, see United States v. Gilliard, 847 F.2d 21, 24(1st Cir. 1988), recognizing "that roadside encounters betweenpolice and suspects are especially hazardous." Michigan v.Long, 463 U.S. 1032, 1049 (1983).

It also must be kept in mind that because the police,regardless of their subjective intent for doing so, may stop anyone who has committed a traffic violation, see Whren v.Brown, 517 U.S. 806 (1996), there is, as a practical matter,great potential for significant intrusions on a citizen's freedomof movement. To mitigate that potential, the justification forstopping and asking a citizen to get out of his vehicle does notineluctably satisfy the further requirements for frisking him.Before turning to the specifics of this case, it may be useful todiscuss the tensions embedded in this area of law.

As already noted, the Fourth Amendment permits officers todetain an individual briefly on reasonable suspicion of criminalactivity and to frisk him for weapons whenever there is anobjectively reasonable belief that the subject is armed anddangerous.4 This principle can be applied in a strainedmanner, because — considering the magnitude of the consequences of anyone motorist drawing a firearm on a police officer — it isarguably objectively reasonable for an officer approachingvirtually any strange person in a vehicle always to feel indanger. See United States v. Thomas, 863 F.2d 622, 629 (9thCir. 1988) (reciting testimony — in a case where the court foundinsufficient justification for the frisk — where in response tothe question "why did you pat [the defendant] down?" the officerresponded: "Basically for my own safety. I was by myself. I wasinvestigating a felony. There were two of them, one of me. Ididn't want any surprises. So I patted down just about everythingunder that kind of circumstance.") That, of course, does notdefine the formal boundaries of the Fourth Amendment protectionshere, but it is crucial to recognize that it informs how they areapplied by courts.

Courts have developed factors, and have called for the policeto identify articulable facts, warranting frisks in an attempt toplace real limits on police conduct during investigatory stops.But these boundaries have been subjected to constant pressure inthe case law. This should come as no surprise considering theposture in which most of these cases appear before judges.Searches that result in no weapons or contraband being found donot — as a practical matter — make it to the courthouse door.Yet, they are events of real constitutional and cultural significance that courts are almostentirely free from addressing. See Illinois v. Wardlow,528 U.S. 119, 133 n. 7 (2000) (Stevens, J., concurring in part anddissenting in part) (citing New York Daily News article regardingan "informal survey of 100 young black and Hispanic men living inNew York city; 81 reported having been stopped and frisked bypolice at least once; none of the 81 stops resulted in arrests").The exclusionary rule operates in an environment in which it isonly those cases where weapons or contraband — such as the drugsin this case — are found that receive consistent judicialscrutiny and then in the context of motions to suppressevidence.5 Courts are left, as a consequence, to define the overarchingboundaries within which police must work in the context ofdiscrete cases where officers make compelling, and often quitereasonable claims — as a practical if not a legal matter — thatthey felt in danger, and recovered probative evidence. Theresults — if not in each case, then as a broad trend — arepredictable. Courts defer to the officer's judgment and evidenceis admitted in cases where the predictions and concerns of theofficers have by definition been substantiated. Although the evidence itself is ordinarily not identified as part of theformal legal analysis, it is difficult to conclude it wasobjectively unreasonable for the officers to believe a suspectwas armed when in fact he was.

But the heart of the reasonableness analysis in such cases, itmust be remembered, is a balancing of interests — the police intheir physical safety and citizens in their liberty. For this tobe carried out on something other than an uncalibrated scale, thereal costs to be borne on both sides must be acknowledged. IfTerry becomes an automatic frisk rule in practice,6 theFourth Amendment rights of citizens — particularly those drivingcars in high-crime neighborhoods — will be eviscerated.7To avoid that result, the reality must be faced that thegovernment will have to sacrifice certain criminal convictionswhere they have more than enough probative evidence to convict.That, of course, also has significant social costs. Nothing inthe Fourth Amendment, nor in Terry and its progeny, however,excuses the imposition of such costs to purchase a measure of privacy.

Turning to the facts and circumstances informing the officers'reaction in this case: Mr. McKoy had violated two trafficordinances; made a leaning movement when the officers first sawhim; appeared nervous and avoided eye contact with the officers;and again moved as the officers got out of their unmarked cruiserand approached Mr. McKoy's car. In addition, the encounter tookplace in what was described as a "high-crime" area where, theofficers were aware, there had been two incidents on successiveevenings earlier that week when windows of private securityvehicles had been shot out. The government argues that whenconsidering the totality of the circumstances in this case, theofficers were justified in frisking Mr. McKoy. In approaching thegovernment's argument, my "inquiry is a dual one — whether theofficer's action was justified at its inception, and whether itwas reasonably related in scope to the circumstances whichjustified the interference in the first place." Terry,392 U.S. at 19-20.

Here, the validity of the stop is not the issue. See note 3supra. An officer need not refrain from stopping someone for aminor offense for fear the person may be dangerous. In UnitedStates v. Villanueva, 15 F.3d 197 (1st Cir. 1994), the FirstCircuit addressed a hypothetical situation where a dangerouslooking pedestrian crosses against a light: It was highly desirable, if not the duty, of the patrol officers to make their presence felt and warn against future misbehavior even though doing so, in the officers' opinion, would call for a safety search. Our sole question is the correctness of that opinion: "[W]hether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."

Id. at 199 (quoting Terry, 392 U.S. at 27). The same questionis before me.

It is certainly the case that while individual factors mightnot be sufficient, a collection of individually insufficientfactors can give the police justification to frisk a detainee:"In reviewing the reasonableness of a Terry stop, a court mustconsider all of the relevant circumstances, which `are not to bedissected and viewed singly; rather they must be considered as awhole." Gillard, 847 F.2d at 24 (quoting Trullo,809 F.2d at 111) (internal citation omitted). Recognizing that officers makeon the spot decisions in dangerous situations, the analysis isone of reasonable belief, not whether the officers were certainor ultimately correct about whether there was a threat.

Nevertheless, vigilance regarding Fourth Amendment protectionsis required with recognition that a legal ruling admittingevidence in a particular factual circumstance gives the search atissue constitutional sanction. Here, that would, in essence, meana determination that if an officer sees someone who has committeda traffic violation in a high crime area appear nervous and movebefore he is told to freeze or get out of their car, theofficers can immediately frisk for weapons. Extending Terry this farwould adopt, as a practical matter, an automatic frisk rule foranybody committing a traffic violation in a high crime areaunless they exhibit no nervousness and do not move in any way.The protections of the Fourth Amendment do not permit such aconclusion, because "[t]oo many people fit this description forit to justify a reasonable suspicion of criminal activity."United States v. Eustaquio, 198 F.3d 1068, 1071 (8th Cir.1999). To see why this is so, I will take up the pertinentelements of the collection of circumstances the government reliesupon.

A. "Nervousness" — The government attempts to justify thefrisk by first citing the defendant's apparent nervousness uponseeing the officers. The case law makes clear that nervousness isa factor the police may consider. See, e.g., United Statesv. Gilliard, 847 F.2d 21, 25 (1st Cir. 1988) ("[T]he officershad a very well-founded suspicion of drug activity, which,coupled with [the defendant's] nervous behavior, gave rise to alegitimate and specific concern for personal safety."). But italone is not sufficient. Nervousness is a natural reaction topolice presence. The Tenth Circuit, for instance, has "repeatedlyheld that nervousness is of limited significance in determiningreasonable suspicion and that the government's repetitivereliance on . . . nervousness . . . `must be treated withcaution.'" United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994).

Nervousness may warrant even less weight when it is manifestedin particular contexts. Justice Stevens, describing theinferences to be drawn when the police see somebody flee theirpresence, wrote: Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence. For such a person, unprovoked flight is neither "aberrant" or "abnormal." Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices. Accordingly, the evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient. In any event, just as we do not require "scientific certainty" for our commonsense conclusion that unprovoked flight can sometimes indicate suspicious motives, neither do we require scientific certainty to conclude that unprovoked flight can occur for other, innocent reasons.Illinois v. Wardlow, 528 U.S. 119, 132-133 (2000) (Stevens, J.,concurring in part and dissenting in part) (internal footnotesomitted).8 Much the same could be said about nervousnessin the presence of police officers. Additionally, motorists confrontedby plainclothes officers will potentially exhibit greateranxiousness. See Whren, 517 U.S. at 817 (noting thattraditional traffic stops have the potential to cause significantanxiety and "[t]hat anxiety is likely to be even more pronouncedwhen the stop is conducted by plainclothes officers in unmarkedcars"). Nevertheless, the police may certainly incorporate thewitnessed nervousness in assessing a situation. In a case such asthis, however, they would need to tie it to significantadditional factors.

B. "High Crime" Locale — The government also cites the highcrime rate in the neighborhood (including specific knowledge oftwo recent evening shootings of security car windows) as a factorto be considered.9 Police are permitted to do so; but,again, that alone is not a sufficient basis to support a frisk or even, for that matter, a stop. See United States v. Stanley,915 F.2d 54, 56 (1st Cir. 1990) ("Location by itself isordinarily insufficient to justify a stop; however, `officers mayconsider characteristics of the area in which they encounter avehicle.'") (quoting Trullo, 809 F.2d at 111). Therefore, whilea factor, the neighborhood is one with limited significance inthis case, particularly where no connection was made by thegovernment between the nature of the crimes committed in theneighborhood and the violation suspected here.10 As inUnited States v. Lott, 870 F.2d 778 (1st Cir. 1989), "[t]his isnot a case where the police had reason to suspect the presence offirearms based on the type of crime suspected. The only reasonfor the stop was a traffic violation." Id. at 785. Noassumption about weapons can be drawn from Mr. McKoy's trafficviolation. It is, unlike, for instance, a stop based on suspicionof dealing drugs, see Gilliard, 847 F.2d at 25 (affirming thedistrict court's denial of a motion to suppress where "the officers . . . suspected [thedefendant] of having participated in a narcotics sale and knewthat firearms are `tools of the trade.'") (quoting Trullo,809 F.2d at 113), or of committing a crime often involving firearms,see Walker, 924 F.2d at 4 (noting, in denying a motion tosuppress, the officer's "experience that burglars often carryweapons or other dangerous objects"). Nor is there any indicationthat they suspected Mr. McKoy was involved in the two recentnighttime shootings of security car windows. It is not enough tosay that such events occur in the area or even that two specificevents occurred recently in the neighborhood, for then everybodystopped for a traffic violation that week would be subject to thepresumption regardless of whether their conduct could fairly beinterpreted as dangerous.11

C. "Movements" — As already noted, it was natural to exhibitsome nervousness in the presence of police officers. Without amore specific showing that this was such disproportionate nervousness that it can suggest consciousness ofguilt of some crime involving dangerous weapons, I cannot findthat simply looking nervous and avoiding eye contact with policein a high-crime area after committing a traffic violationprovides insufficient grounds to frisk. The government, however,adds an additional layer to be considered in the analysis: thatMr. McKoy was seen leaning forward and moving his right arm. Thereal question, then, becomes whether nervousness in a high-crimearea, when combined with the movements made by the defendant,provided the officers with the "reasonable belief [Mr. McKoy was]armed." Terry, 392 U.S. at 30.

Certain movements enter into the equation when considering thetotality of the circumstances confronting police officers.Attempting to meet their burden in this case, the governmentanalogizes the situation here to those in a number of cases wherewhat were labelled "furtive gestures" were cited by courtsdenying motions to suppress evidence. In so doing, however, thegovernment's argument veers close to proposing that movement bysomeone being approached by a police officer is by definitionfurtive. That is not the case. The movement must be interpretedin context to determine if it is actually furtive, if it in factgives rise to a reasonable belief that the suspect is armed anddangerous.

Even after fully considering the movement under the totality of the circumstances, I find that the government has failed toshow that the frisk of Mr. McKoy was permissible. The casesrelied upon provide excellent examples of when officers may friska suspect. But they are quite different from the record in thiscase. An extended discussion will illustrate how far this case isfrom those properly permitting a frisk.

In United States v. Nash, 876 F.2d 1359 (7th Cir. 1989), forinstance, the officer witnessed the defendant make a "furtivegesture," lifting himself off the seat and reaching down.Approaching the car alone, the officer did not immediately removethe passenger and frisk him. Instead, he noted that the defendantappeared unkempt and smelled of alcohol. Additionally, there wasa German Shephard in the back seat of the car, and the defendanthad a jacket tucked under his lap that extended to the floor ofthe car. At this point, the officer requested that the defendantleave the vehicle and then reached into the car to see what mightbe hidden beneath the jacket. He then took the defendant to thepatrol car to conduct a pat-frisk of his person. The propositionfor which Nash stands is that a sole officer, approaching a cardriven by someone who appears disheveled and drunk and havingwitnessed movement toward an area of the car where he later seessomething that could obscure a weapon, may conduct a limitedsearch for weapons. See id. at 1361 ("The jacket covered thearea in which [the defendant] appeared to have hidden something when he made the `furtive gesture'. These twofacts, the furtive gesture and the position of the jacket,warranted [the police officer's] belief that a search wasnecessary for his safety."). The defendant in Nash is like Mr.McKoy in that they both made volitional movements, but that doesnot make them similarly furtive.

The government also cites the Seventh Circuit's decision inUnited States v. Denney, 771 F.2d 318 (7th Cir. 1985), for theproposition that a defendant's furtive gesture of moving towardthe right side of his vehicle is properly considered by courts asa factor when assessing the permissibility of a frisk. While thatis technically true, a closer analysis of the case reveals whythe movement was deemed to be threatening. In Denney, DrugEnforcement Administration agents and police officers wereexecuting a search warrant on a house they believed containedfirearms. Nearing completion of the search, they witnessed atruck being driven at high speed up the gravel road leading tothe house. The truck came to a skidding halt near some of theofficers. At that point, a special agent identified himself, drewhis gun, and ordered the driver to raise his hands and get out ofhis truck. The driver did not do so, and after a second commandby the agent, moved toward the center of the truck. See id.at 322 (finding that the defendant's "refusal to cooperate withthe officer's request to keep his hands in sight and to exit the truck intensified the officers' reasonable concerns for theirsafety"); see also United States v. Johnson, 212 F.3d 1313,1316 (D.D.C. 2000) (finding a stop permissible where the officer"made a show of authority but [the defendant] had not submittedto it" and subsequently made furtive gestures). The officersresponded by approaching the truck with guns drawn and physicallyremoved him from the vehicle, after which they conducted aprotective sweep of the truck's interior.

The "furtive gesture" in Denney teaches that movement aloneis not what courts are to consider, but rather movementsignifying danger within a particular context. Applying theruling in Denney to the case before me — a case where there wasno other indication of firearms, no aggressive behavior by thedefendant, and no exertion of authority and disobedience of thatauthority before the movement at issue — would do "enormousviolence to context." Blackie v. Maine, 75 F.3d 716, 722 (1stCir. 1996) (Selya, J.).

The government also relies on United States v. Moorefield,111 F.3d 10 (3d Cir. 1997), where the court found the frisk of apassenger in a car to be constitutional in part due to furtivemovements by the passenger. Unlike here, and similar in thisregard to Denney, the movements in Moorefield occurred aftera police officer instructed the passenger to put his hands in theair: [I]n response to [the officer's] instruction to [the defendant] to remain in the vehicle with his hands in view, [the defendant] attempted to exit the vehicle and then raised and lowered his hands several times. In addition, [the defendant] leaned back and appeared to shove something down toward his waist.

111 F.3d at 14; see also Stanley, 915 F.2d at 57 (notingthat frisking the defendant was reasonable after the officerordered the stopped suspect to freeze and "[the defendant] . . .ignored the order and lunged toward the passenger's side of thecar" during a nighttime encounter in a rear parking lot wheredrug transactions were known often to take place). There is noindication here that when the officers exerted their authorityover Mr. McKoy he disobeyed them in any way. If the officers wereuncertain about what the defendant was doing, they were free todeclare their status as police officers and demand he remainstill. If an officer can simply frisk someone immediately in sucha circumstance before exerting his authority, a motorist pulledover for a broken taillight, for instance, will be deemeddangerous if he reaches for his registration, turns off theradio, or puts the car in park. While I recognize that all suchmovements can also indicate reaching for a weapon, that is trueof almost any movement made by someone sitting in a car. That,however, does not by definition make all movements furtive.

There is also no testimony in this case that the officers sawany physical indications that the defendant was armed, unlike,for instance, United States v. Mitchell, 951 F.2d 1291 (D.C. Cir. 1991), where the court affirmed the district court'sdenial of a motion to suppress in part because of "furtivegestures" witnessed by a police officer. Once again, the officerwitnessed more concrete factors evidencing danger in Mitchellthan are present here. There, the car was stopped after initiallyfailing to obey orders to pull over. An officer approached thepassenger window of the stopped car after a fellow officer hadreturned to the police cruiser to run a check on the vehicle. Theofficer witnessed the passenger in the car moving his handswithin his jacket and, growing concerned, asked him to step outof the car. Not immediately frisking the passenger, the officerfurther noted that the passenger was sweating and asked him why.The passenger said he was hot, to which the officer responded "ifyou're hot why don't you take your coat off." Id. at 1294. Thepassenger did so and the officer saw a bulge under the man'ssweater he believed was a gun. It was only then that he orderedthe passenger to put his hands on the car and, subsequently,withdrew a gun from the passenger's pants.12

Finally, as already noted, no inferences could be drawn fromthe type of crime Mr. McKoy was suspected of committing. This is important to remember when attempting, as the government does, toanalogize this case to ones such as United States v. Cole,276 F. Supp. 2d 146 (D.D.C. 2003). The Cole court considered thedefendant's furtive movements,13 finding that theofficers had sufficient grounds to believe the driver was armedbecause they "saw in the early morning hours a speeding car thatmatched the description of a car seen leaving a shooting twohours earlier in the same area. The driver kept driving forblocks after [the officer] turned on his emergency lights andsiren, and the driver leaned forward and fumbled under the seatafter he stopped." Id. at 152-53. Again, there is no additionalinforming factor, such as a suspected violent crime or alate-night encounter, in the case at hand. Although there hadbeen two recent nighttime shootings, there was no indication ofany connection of the defendant to such violent acts other thanhis physical presence in the neighborhood.

One case cited by the government in its attempt to show thatthe search was justified could be read to admit evidence incircumstances no more suspicious than those in this case. In anunpublished D.C. Circuit opinion, United States v. Draine,48 F.3d 562 (Table), 1995 WL 66735 (D.C. Cir. 1995), the defendant"engaged in a furtive movement which justifiably caused the police officer to be concerned for his safety and provided alegitimate basis for an investigative detention and protectivefrisk." Id. at **1. The driver there was stopped for failure todisplay his front license plate properly and for the heavy tinton his windows, both traffic violations. It is not clear whetherthe court based its finding on the furtive gestures — notdescribed in the opinion — alone or whether the tinted windowswere also considered. In any event, to the extent the court'sopinion is read to stand for the proposition that undefinedmovement conclusorily termed furtive, without more, in a stoppedvehicle would warrant immediate frisking of the driver orpassenger, I find its application of Terry too broad. Theopinion, in any event, offers little in the way of explanationfor its holding.

In sum, the only indications in this case that Mr. McKoy wasdangerous were (a) generalized notions regarding theneighborhood, not inferences drawn from his suspected crime, and(b) movements and nervousness in the presence of police, notphysical reactions in contravention of an order to stop moving orapparent efforts at concealment. To admit the evidence would be alegal determination that if one commits a traffic violation in ahigh-crime neighborhood he will be subject to a frisk whenever heappears nervous and moves. The case law does not support such asimplistic and far-reaching conclusion and I decline to adopt it.

III. CONCLUSION

For the reasons stated above, the motion to suppress isGRANTED.14

1. It is not entirely clear from the record whether or whenMcKoy became aware that Stratton and Joyce were police officers.Following the hearing in this matter, Stratton submitted asupplemental affidavit asserting that he wears his badge on hisbelt and, although he cannot remember exactly where Joyce worehis badge on that day, is sure that it was visible. The affidavitalso mentions other indications that the two were policeofficers. There is no indication that the defendant questioned inany way the authority of Joyce to remove him from the car.Therefore, I find that the defendant knew he was dealing withpolice officers — if not when they were in their car — at leastat the point when they were approaching his car on foot. Yet, asthis memorandum will detail, even if I assume he knew they werepolice officers the moment he first saw them, the frisk would notbe reasonable under the facts in this case. And, to the extentMcKoy did not know the two men were police officers, the friskbecomes even less justifiable, because the nervousness andmovements witnessed could not be interpreted as reactions to apolice presence.

2. It is not entirely clear from the face of Joyce's testimonywhen the defendant made his last movement in relation to when hewas asked to leave his vehicle. One portion of Joyce's testimonyseems to state that McKoy leaned forward after Joyce hadrequested he leave the car: As we get to the car, again, when we asked the person, Mr. McKoy, to step out of the car, he again reached forward. And we couldn't see what he was doing. I wanted him out of the car as quick as possible, because, yes, I was in fear for my safety at that time.Examining the encounter in context, however, in light of thetestimony of Stratton, I find that the second movement waswitnessed as the officers approached, before McKoy was asked toleave the car, and that promptly upon being asked, McKoy left hisvehicle.

3. Of course, the police did not actually stop the car in thiscase. At the point when they asked McKoy to leave the car,however, they had seized him for purposes of the FourthAmendment. The police officers in this case were justified in stopping thedefendant and effecting this initial seizure because they hadprobable cause to believe he had committed two separate trafficviolations. See Whren v. Brown, 517 U.S. 806, 819 (1996)(holding that probable cause to believe the traffic code had beenviolated "rendered the stop reasonable under the FourthAmendment" regardless of officers' subjective intent). Theofficers in this case were also permitted to ask Mr. McKoy to getout of the car. See Maryland v. Wilson, 519 U.S. 408, 415(1997) ("[A]n officer making a traffic stop may order passengersto get out of the car pending completion of the stop."). Theremainder of this memorandum and order, therefore, will focus onwhether the officers were justified in frisking Mr. McKoy once heleft the car.

4. The Terry doctrine is designed as an amelioration of therigors of traditional Fourth Amendment rules. The doctrineattempts to provide police officers with greater flexibilitywhile also creating enforceable limits in the face of practicalrealities making such enforcement quite difficult. Some believethat the very concept of frisking a suspect on mere suspicion hasinsufficient constitutional footing. For instance, Justice Scaliahas observed that he is unaware . . . of any precedent for a physical search of a person thus temporarily detained for questioning. Sometimes, of course, the temporary detention of a suspicious character would be elevated to a full custodial arrest on probable cause. . . . At that point, it is clear that the common law would permit not just a protective "frisk," but a full physical search incident to arrest. When, however, the detention did not rise to the level of a full-blown arrest . . ., there appears to be no clear support at common law for physically searching the suspect.Minnesota v. Dickerson, 508 U.S. 366, 381 (1993) (Scalia, J.,concurring).

5. The civil enforcement of constitutional remedies is by andlarge not a productive — and consequently in my nearly twodecades of experience in dealing with such issues has been aninfrequently used — manner of invoking judicial scrutiny in thissetting because civil rights plaintiffs face an uphill battle inenforcing the Fourth Amendment by way of alternatives to theexclusionary rule. See 1 Wayne R. LaFave, Search and Seizure §1.10 (4th ed.) (noting that most of what "has been writtenconcerning those other remedies" conclude "that these otherremedies are inadequate"). [T]he potential advantages of civil suits are seldom realized. Such suits are few and far between, and therefore relatively punchless as punishing mechanisms, for a number of reasons: potential plaintiffs' ignorance of their rights and fear of police reprisals; the expense of civil litigation; the obstacles created by incarceration; and the inchoate nature of the injury (which deters lawyers as well as potential plaintiffs from bringing suit). Those suits that are brought are seldom completely successful, again for a number of reasons: the good-faith defenses available to officer-defendants; the unsympathetic nature of many plaintiffs (who are often criminals, or at least associated with criminality); the biases of juries; and, as with exclusion, the efficacy of police perjury. Even if the officer loses, he or she is often indemnified, judgment proof, or both, minimizing the impact of the verdict on the officer.Christopher Slobogin, Why Liberals Should Chuck the ExclusionaryRule, 1999 U. Ill. L. Rev. 363, 385-86 (1999) (footnotesomitted). In one study of litigation data in the Central District ofCalifornia from 1980-81, the authors found that "constitutionaltort plaintiffs do significantly worse than non-civil rightslitigants in every measurable way" and "are less likely to havecounsel than other litigants." Theodore Eisenberg & StewartSchwab, The Reality of Constitutional Tort Litigation, 72Cornell L. Rev. 641, 677, 680 (1987). The lack of success of the vast majority of civil rights claimsagainst federal officers (so-called Bivens actions), where thedefendants also enjoy qualified immunity, is also illuminating.See Vaughan & Potter 1983, Ltd. v. United States, No.92-F-1767, 1992 WL 234868, at *5 n. 4 (D. Col. 1992) ("Out ofapproximately 12,000 Bivens-type claims brought from 1971 to1985, only thirty plaintiffs were successful in United Statesdistrict court, and some of these decisions were overturned onappeal.") (citing Perry N. Rosen, The Bivens ConstitutionalTort: An Unfulfilled Promise, 67 N.C.L. Rev. 337, 343 (1989));see also Slobogin, supra, at 385 n. 82 ("In the first 10years of litigation under Bivens, reportedly only 13 plaintiffsout of 13,000 secured judgments.") (citing Federal Tort ClaimsAct: Hearings on S. 1775 Before the Senate Judiciary Comm.,Subcomm. on Agency Admin., 97th Cong. 137, 142 (1982) (statementof Donald Devine, Director, U.S. Office of PersonnelManagement)).

6. See David A. Harris, Particularized Suspicion,Categorical Judgments: Supreme Court Rhetoric Versus Lower CourtReality Under Terry v. Ohio, 72 S. John's L. Rev. 975, 977(1998) ("Soon, given the direction of the law, this system ofcategorical rules will allow police to stop and frisk almostanyone they want, with minimal interference from the courts.").

7. See David A. Harris, Frisking Every Suspect: TheWithering of Terry, 28 U.C. Davis L. Rev. 1, 6 (1994) ("If . . .we now think that only automatic frisks following everyTerry stop can make officers safe, we should be willing notonly to say so directly, but also to confront the full range ofconsequences of that conclusion.").

8. It should be added that although I base my findings on theassumption that Mr. McKoy, at least at some stage before leavingthe car, knew that he was dealing with police officers, that isless than clear from the record. Therefore, there is even morereason to question the significance of his nervousness. If Mr.McKoy was not entirely sure who these men approaching him were,he had every reason to be nervous and to avoid eye contact. The government's claim that he would have no reason to thinkanybody but police officers would approach him is not at allpersuasive. People confront their fellow citizens with badintentions for any number of reasons or no reason at all. It isone of the reasons the officers would be on patrol: to protectthe residents of the neighborhood from such encounters. In thatway, the high-crime rate of the neighborhood is not only a factorthat may be considered when assessing police conduct, but alsowhen interpreting the conduct of Mr. McKoy. In any event, evenassuming Mr. McKoy was aware from the very beginning that thesewere police officers coming toward him, his nervousness, while afactor, gets the officers only a small measure closer to beingjustified to search the defendant's person.

9. The location of the stop is described as "an area ofincreased violence involving firearms and drug activity" in aBoston Police Incident Report dated February 6, 2003 authored bySergeant Stratton regarding the arrest of Mr. McKoy. The February6 report also states that "officers had knowledge of twoincidents at this location where a marked security cruiser wasshot at." The two shootings of security vehicle windows are thesubject of a February 1, 2003 incident report by other officers.

10. Judge Bownes, in his dissent in Trullo, warned againstthe reflexive lessening of privacy interests in high-crimeneighborhoods: [W]e are asked to find reasonable suspicion on the basis of quite general characteristics of a sizeable area of the city, when the suspicion was not grounded in any specific information about date, time, or the particular individuals. . . . It would seem that, for the court, the [neighborhood] is a per se region of lessened expectation of privacy, at all times of the day and at all periods of the year, where practically unlimited deference is granted to police officers' discretion. . . . [T]he court . . . has effectively eliminated any fourth amendment scrutiny of police suspicions concerning activity [in that part of the neighborhood].Trullo, 809 F.2d at 116 (Bownes, J., dissenting).

11. See Margaret Raymond, Down the Corner, Out in theStreet: Considering the Character of the Neighborhood inEvaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, 100-01(1999) ("Observations of minimal significance are sometimeselevated to reasonable suspicion based on the character of theneighborhood in which the suspect is found; in a `high-crime'area, standing on a street corner or sitting in a parked car havebeen held to amount to reasonable suspicion that criminalactivity is afoot. Such cases raise the significant danger thatpersons are being subjected to stops based on the neighborhoodsin which they are found, rather than the behavior in which theyengage while in a particular neighborhood.") (footnotesomitted).

12. The government also references an unpublished opinion bythe First Circuit, United States v. Greene, 129 F.3d 1252(Table), 1997 WL 642275 (1st Cir. Oct. 14, 1997), where thedefendant — a passenger in a stopped cab — appeared nervous. Inthat case, however, the officer "observed a large bulge inappellant's right pants pocket" which he believed was a weapon.Id. at **1.

13. The court did discuss the issue although it did not needto reach the question as to the driver, since he was challenginga search of a fellow passenger, a claim for which he had nostanding.

14. The defendant also seeks to suppress the evidence in thiscase by arguing that the officer, upon feeling the marijuana, wasnot immediately able to discern that it was contraband pursuantto the "plain feel" doctrine. In addition, he contends that theofficer's subsequent question regarding the substance violatedhis Miranda rights. Because the evidence will be excluded onother grounds, it is unnecessary to reach these questions. Inote, however, that for the protections of Miranda to apply,the subject must be both in custody and subject to aninterrogation. In this case, Mr. McKoy was simply the subject ofan investigatory stop at the time he got out of his car and wasfrisked. Additionally, the officer did not immediately seize thecontraband upon feeling it. Instead, he inquired of the defendantwhat it was. Absent custody, the officer was free to ask, and thedefendant was free not to respond. He did respond, however, andupon the defendant's answering, the officer had probable cause toarrest him and did so. The seizure and subsequent search — if theinitial frisk had been permissible — would have been incident tothat lawful arrest.

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