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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
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No. 93-1502
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE VILLANUEVA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Edward D. Entine with whom Edward A. Gottlieb and Coyne


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____________________
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Gottlieb were on brief for appellant.
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Timothy Q. Feeley, Assistant United States Attorney, with whom
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John Pappalardo, United States Attorney, was on brief for appellee.
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February 3, 1994
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ALDRICH,
Villanueva

Senior Circuit Judge.


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pleaded

guilty

to

Defendant

Jose

firearm

after

possessing a

having been convicted of a felony, 18 U.S.C.


subject to

the right

type stop and


Crim. P.

to appeal the

922(g)(1), but

propriety of

search that had discovered the gun.1

11(a)(2).

In

denying the motion to

the Terry
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Fed. R.

suppress, the

district court stated that it

believed the testimony of

government witness, Anderson,

and that it took

the

into account

the nature of the area and the history of volatile conduct in

that particular station and concluded that the temporary stop


and pat search was reasonable under all of the circumstances.
We affirm.
Anderson
officer

of the

testified that

Massachusetts

he and

another uniformed

Bay Transportation

Authority

(MBTA) were manning a directed patrol of the Roxbury Crossing


MBTA Station.
of

a day

According to him, "Directed patrol is the time

that is

targeted for

particular instances that


The officers placed

high visibility

have happened in a

the head of the stairs

which

they could

look

below

-- a

down

single platform

line.

certain area."

themselves inside the turnstiles

upper level, near

outboard

because of

and see
flanked

on the

and escalator from

almost
by an

all that

was

inboard and

an

Anderson testified that several hundred high

school students come through

there a day, and at the time in

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1.

Terry v. Ohio, 392 U.S. 1 (1968).


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question a couple of hundred were boarding an outbound train.

"We

observed

two

manner. . . .
giving the

young

males

acting

in

[T]hey were banging on the

other students

the middle

train windows and

finger and

becoming quite loud . . . pounding against the


There

were obscenities."

disorderly

they were

windows . . .

Defendant wore a hooded sweatshirt

just over

the belt and a goosedown type of coat hanging past

his knees

that could conceal a

talk

to

the two

gentlemen

behavior was extremely


from them."

to

let

We had

them know

disorderly and we didn't

"We intended to

that that type

weapon.

talk with

"decided to
that

their

expect that

them and tell

of behavior was not appropriate;

them

don't do it

again; leave the station."


When

defendant and friend

escalator Anderson told


to

defendant -- whom they

him -- to step aside; that

check

him,

nervous."
the waist,

at
When

which

reached the top

point

of the

had assigned

he wanted to speak to him, to


defendant

looked

Anderson patted his outside

immediately feeling

a gun,

"extremely

clothing around

defendant sought

to

flee, but Anderson restrained him.


In complaining that Anderson's
Fourth Amendment rights
and

to be free of

seizures defendant stresses

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conduct invaded his


unreasonable searches

the following points.

His

prior

conduct had

left the site, and

been, at

most, a

had discontinued the conduct.

outward appearance of being armed.


or propose

misdemeanor.2

to make, an

arrest.

He had

He bore no

The officer did not make,


The pat-down

occurred even

before the officer asked any questions.


Most
there was
better.
state

of these

matters are

answered.

If

a shown need for a safety pat-down, the sooner the


Equally, we see no

sentence

defendant

defendant's clothing was


affirmatively
U.S. 85,

easily

had exposed

himself

its

him, Ybarra v.
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capacity for

Defendant's

other

of the

to.

in current style, and so

be held against

93 (1979),

irrelevant.

relevance in the length

While

could not

Illinois, 444
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concealment was

points

require

not
more

consideration.
This case,
stop,

and

the

character being

of course,

search

involves two

(a pat-down

a search).

of

Terry at 16.
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even

events:

the

the slightest

The two

construed together.
[I]n determining whether the seizure
and
search
were
"unreasonable" our
inquiry is a dual one -- whether the
officer's action was justified at its

must be

inception, and whether it was reasonably


related in scope to the circumstances
which justified the interference in the
first place.
Terry at 20.
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2. This it clearly was.
Mass. G.L. c. 272
53 (1990)
(". . . disorderly persons, disturbers of the peace . . .").
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This test should be applied in both directions.

An

officer might wish to stop a pedestrian from crossing against


the light.

Should he not refrain

from doing so, for lack of

relative importance,

if the pedestrian's

made

his

him

fear that

accosted him?

safety

might

general appearance
be involved

if

he

Here the need of accosting justified the stop;

even if a search would be in order.

It was highly desirable,

if

officers to

not

the duty,

of

the

patrol

make

their

presence felt and warn against future misbehavior even though


doing so, in
search.
opinion:

the officers' opinion, would call

Our

sole

question is

"[W]hether

the

reasonably

for a safety

correctness
prudent

man

of
in

that
the

circumstances

would

be

warranted in

the

safety or that of others was in danger."

belief

that his

Terry at 27.
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The district court spoke, correctly, of the history


of the area, confirmed by the very fact that the MBTA felt it
advisable to provide a

special patrol.

The court

noted the provocative nature of defendant's


couple of hundred
who

would be

weapon?

doubtless

conduct.

students present there might well

offended.

Was

he "emboldened"

With a
be many

by having

Cf. United States v. Wilkinson, 926 F.2d 22, 25 (1st


__ _____________
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Cir.), cert. denied, 111 S. Ct. 2813 (1991) (concealed weapon


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may embolden).
For the words

"reasonably" and "circumstances"

important consideration is the calendar

-- the times.

an
With

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the plethora of
must

have

sympathy,

apprehensions.
so

gun carrying, particularly by the


to an

extent,

with

young, we

police officers'

And, as there may be degrees of apprehension,

may there be degrees

of invasion upon

privacy.

We will

not overrule the district court in this case, but do note the
question extremely close.
character

of the

permission, Brown
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must

be

danger.

Also, we

neighborhood

does

v. Texas, 443
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considered

on its

United States v.
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remind police that


not provide

U.S. 47 (1979);

own

reasons

Stanley, 915
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the

automatic
every case

for suspicion
F.2d 54

of

(1st Cir.

1990).
A

word as to

defendant's contention that,

basis of

Anderson's testimony,

he had

addition

to lecturing defendant to keep

on the

two objectives.

In

away and not repeat

his offense, for which he felt the need of protecting himself


and others,
simply on

Anderson intended
his conduct

to pat

defendant down

in disturbing the

peace.

based

The fact,

however, that he had this additional purpose did not, even if


improper,
relied on.

destroy the

validity of

We need not,

same time, we cannot resist


grace

the

one that

accordingly, evaluate it.

the court
At the

remarking that it comes with ill

from someone engaged in affronting his fellow citizens

wholesale, as was
outer clothing was

this one, to claim that

a pat-down of his

a "serious intrusion upon the sanctity of

[his] person, which may inflict

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great indignity."

Terry
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at

17.

Cf. Curley v. Curtis Pub. Co., 48 F.


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Supp. 27 (D. Mass.

1942) (plaintiff claiming emotional suffering from defamation


can be shown accustomed to abuse others).
Affirmed.
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