234 F.3d 733 (1st Cir.

2000)

UNITED STATES OF AMERICA, Appellee,

v.
ANDRES CAMPA, Defendant, Appellant.
No. 00-1104

United States Court of Appeals For the First Circuit

Heard November 7, 2000
Decided December 12, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S.
District Judge][Copyrighted Material Omitted]
Owen S. Walker, Federal Public Defender, with whom Stephanie A.
Jirard, Federal Defender's Office, was on brief for appellant.
Nadine Pellegrini, Assistant U.S. Attorney, with whom Donald K. Stern,
United States Attorney, was on brief for appellee.
Before Selya, Circuit Judge, Coffin and Bownes, Senior Circuit Judges.
COFFIN, Senior Circuit Judge.

Appellant Andres Campa was arrested when he went to retrieve a package of

counterfeit alien work permits ("green cards") at an apartment targeted by law
enforcement authorities because a series of suspicious packages had been
delivered there. He entered a conditional plea of guilty to charges relating to the
counterfeiting and fraudulent use of various identification documents, reserving
his right to appeal the district court's denial of his motion to suppress all
evidence and statements obtained by authorities after his arrest. See 18 U.S.C.
1028(a)(1), (a)(5), 1546(a); 42 U.S.C. 408(a)(7)(c). Campa now brings that
appeal, claiming that the district court erred in failing to find that he was
unlawfully detained and searched upon entering the apartment. Our review of
the record and relevant case law persuades us that the only Fourth Amendment
violation that occurred -- an improper frisk -- was unrelated to appellant's arrest
and did not give the government access to the incriminating evidence. We

therefore affirm the denial of appellant's suppression motion.

I. Factual Background
2

For nearly a year before March 1999, the United States Postal Inspection
Service had been investigating suspicious Express Mail packages addressed to
74 Thornton Street in Revere, Massachusetts. On March 19, Inspector Michael
McCarran posed as a mailman and delivered the latest such package. Three
other law enforcement officers accompanied him, but initially remained in the
postal truck.1

A man later identified as Jose Bullon came to the door, stated that he was the
addressee, "Francisco Valencia," and signed the name "Francis Palencia" on
the delivery mail receipt. McCarran then summoned the other officers. Bullon
agreed to speak with them and consented to the package being opened. Inside
were forty blank green cards. Bullon admitted that Valencia was a fictitious
name and that he was accepting the package for a man he knew as "Gorrito."
He described Gorrito as a Hispanic male in his early twenties who usually wore
a baseball cap. Bullon reported that Gorrito paid him $50 per package and that
he previously had accepted about ten packages. Bullon stated that Gorrito
manufactured the fraudulent documents in a nearby apartment on Highland
Street. Expressing fear of retaliation if Gorrito learned of his cooperation,
Bullon nonetheless disclosed that Gorrito was due at the Thornton Street
apartment at about 2 p.m. that day, and he agreed to go with one of the officers
to point out the Highland Street apartment.

At about 2:30 p.m., shortly after Bullon returned to the Thornton Street
location, Bullon and McCarran saw two Hispanic males walking down the
street toward the apartment. Bullon identified one of the men, who was
wearing a baseball cap, as Gorrito. He later was identified as appellant Campa.
Appellant and the other man, Enrique Lara-Valirde, entered the apartment
without knocking and were confronted just inside the door by three officers,
who identified themselves, ordered the men to face the hallway wall, and then
conducted a pat-down search. During the frisk of appellant, Trooper Marron
took keys, a beeper and a wallet from his pockets, dropping the items to the
floor as they were removed. Appellant and Lara-Valirde then were escorted to
the kitchen, where they sat down at a table. McCarran gathered the items
removed during the frisk and placed them on the table.

At this point, the officers asked for identification. Lara-Valirde admitted that he
had no identification and was in the United States illegally. Marron, a non-

Spanish speaker, attempted to communicate with appellant by saying the word

"identificacion" two or three times. In response, Campa took a New Jersey
driver's license from his wallet and handed it to the officer.2 Marron recognized
the license as a counterfeit and placed Campa under arrest. About one minute
had elapsed since the men entered the kitchen.
6

Campa, who spoke little or no English, was read Miranda warnings in Spanish
and immediately signed a Spanish-language form waiving his rights. He
acknowledged his involvement in counterfeiting and consented to a search of
his Highland Street apartment. There, he identified keys to open the front door
and a locked closet. In the closet, officers discovered a substantial quantity of
counterfeit documents as well as equipment for manufacturing false
identification materials. A short time later at police headquarters, Campa made
additional incriminating statements after again being advised of his rights.

Appellant subsequently moved to suppress the counterfeiting materials found in

the Highland Street apartment and his statements to authorities admitting
culpability. He argued that the officers did not have the requisite level of
suspicion to justify the stop and pat-down search, that his arrest was unlawful,
and that his confessions and all physical evidence seized should be suppressed
as "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 48788 (1963).

After a two-day evidentiary hearing, the district court concluded that the
officers had a sufficient basis to detain Campa briefly for the purpose of
exploring his relationship to the counterfeit green cards, but that the
accompanying frisk was excessive in scope because the officers removed all
items from his pockets without regard to whether they might be weapons. The
court nonetheless refused to suppress any of the challenged evidence on the
theory that its discovery was inevitable given the authority of the police to
determine Campa's identity. The court believed that, even with a more limited
frisk, Campa either would have provided the New Jersey license voluntarily, or
the officers could and would have searched him to obtain it. On appeal,
appellant renews his claim that the officers lacked even the reasonable
suspicion necessary to conduct an investigatory stop authorized by Terry v.
Ohio, 392 U.S. 1 (1968), and he maintains that the actions they took constituted
a de facto arrest that needed to be supported by the higher standard of probable
cause. He asserts that neither the record nor case law supports the district
court's inevitable discovery theory.

We review the district court's findings of fact for clear error, but give de novo
consideration to its legal conclusions. United States v. Cruz, 156 F.3d 22, 26

(lst Cir. 1998). We will uphold a district court's decision to deny a suppression
motion if the decision is supported by any reasonable view of the evidence.
United States v. McCarthy, 77 F.3d 522, 529 (lst Cir. 1996).
II. Discussion
10

This case requires us to examine closely two different interactions, minutes

apart, between law enforcement officers and appellant. The first occurred in the
hallway of the Thornton Street apartment when officers stopped and frisked
appellant and Lara-Valirde immediately after their entry into the apartment.
The second occurred in the kitchen when the officers demanded identification,
prompting appellant to produce the false New Jersey driver's license. Appellant
contends that the officers' conduct during the first encounter was unlawful, and
he asserts that the license and all other evidence and statements subsequently
obtained were fruits of that illegality. He specifically maintains that the
unlawful removal of his wallet from his pocket in the hallway led to his turning
over the phony New Jersey license and, consequently, to his arrest. Though we
agree that the pat-down was flawed, we disagree that it tainted the second
encounter. We begin our analysis by reviewing relevant Fourth Amendment
jurisprudence.
A. The Terry Stop-and-Frisk Standards

11

A warrantless search violates the Fourth Amendment unless it falls within one
of the few carefully limited exceptions to that important constitutional
protection. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); United States v.
Woodrum, 202 F.3d 1, 6 (lst Cir. 2000). A consensual search is one such
exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States
v. Forbes, 181 F.3d 1, 5 (lst Cir. 1999). Another was recognized in Terry, which
held that a police officer with reasonable suspicion of criminal activity may
detain a suspect briefly for questioning aimed at confirming or dispelling his
suspicions. See Dickerson, 508 U.S. at 372-73; Woodrum, 202 F.3d at 6. The
officer making the stop must possess "specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that
intrusion." Terry, 392 U.S. at 21; Woodrum, 202 F.3d at 6.

12

In addition to the stop for questioning, Terry permits a pat-down search for
weapons based on an objectively reasonable belief that the suspicious
individual is armed and presently dangerous. Dickerson, 508 U.S. at 373. Such
a protective search, designed to allow the officer to conduct his investigation
without fear of violence, must be "strictly 'limited to that which is necessary for

the discovery of weapons.'" Id. (quoting Terry, 392 U.S. at 26); see also Adams
v. Williams, 407 U.S. 143, 146 (1972). Typically, this will be "a limited patting
of the outer clothing of the suspect for concealed objects which might be used
as instruments of assault." Sibron v. New York, 392 U.S. 40, 65 (1968). If the
frisk goes beyond what is necessary to determine if the suspect is armed, its
fruits will be suppressed. Dickerson, 508 U.S. at 373, 378-79; see also United
States v. Schiavo, 29 F.3d 6, 9 (lst Cir. 1994) (affirming suppression where
officer's continued exploration of a bulging paper bag in suspect's pocket "'after
having concluded that it contained no weapon was unrelated to the sole
justification of the search under Terry'") (quoting Dickerson, 508 U.S. at 378).
B. The Hallway Encounter
13

Appellant contends that the hallway encounter was not a lawful Terry stop
because it was not justified by sufficiently concrete and reasonable suspicion of
criminal activity. He further argues that, in any event, the seizure and search
exceeded the bounds of a permissible Terry stop and thus constituted a de facto
arrest unsupported by probable cause.

14

1. The Stop. We have little difficulty in concluding that the hallway stop fit
comfortably within the Terry framework. The officers knew that a package
containing fraudulent documents had been delivered to the apartment and that a
series of similar deliveries had occurred over the last year. Bullon reported that
an individual known as Gorrito was the intended recipient of the package that
day and that he previously had received about ten similar packages. Bullon
further disclosed that Gorrito, who customarily wore a baseball cap, would be
returning to the apartment at about 2 p.m. Although Bullon's credibility was
previously untested, the officers had the opportunity to assess his truthfulness
in an extended face-to-face encounter, and they remained with him until his
information was partially corroborated by events. Bullon's own admission of
complicity, see, e.g., United States v. Shaefer, 87 F.3d 562, 566 (lst Cir. 1996),
and the risk of police retaliation for giving false information, see
Commonwealth v. Melendez, 407 Mass. 53, 57, 551 N.E.2d 514, 516 (1990),
added to the likelihood of his veracity. Consistent with Bullon's report,
appellant, wearing a baseball cap, arrived at the apartment at about 2:35 p.m.,
and was identified by Bullon as he approached the building. These factual
circumstances, specifically pointing to appellant, gave officers ample basis for
a reasonable suspicion that he was involved in illegal activity and justified a
brief detention to investigate whether those suspicions were correct.

15

2. The Detention. We also reject the contention that the hallway encounter
evolved into a de facto arrest. The detention was brief -- a few minutes from

the time the men arrived in the apartment until they were moved to the kitchen
-- and the circumstances were nearly the least intrusive possible for a stop and
frisk. See, e.g., United States v. Sowers, 136 F.3d 24, 27 (lst Cir. 1998) (courts
must examine the totality of the circumstances "to locate a particular sequence
of events along the continuum of detentions"); see generally United States v.
Acosta-Colon, 157 F.3d 9, 14-15, 21 (lst Cir. 1998) (describing distinctions
between investigatory stops and more coercive detentions); United States v.
Zapata, 18 F.3d 971, 975 (lst Cir. 1994) (same). Although appellant emphasizes
that the two men raised their hands when asked to face the wall for the frisk,
this form of compliance with the officers' instructions does not make the
interaction tantamount to an arrest. The officers did not display weapons, use
handcuffs or exert any physical force on the two men. Directing them to move
the few steps from the hallway to the kitchen, presumably a larger space and
thus a more natural setting for conversation, in all likelihood defused some of
the tension surrounding the hallway frisk; it certainly was not a dramatic
change in the officer-suspect relationship that converted a Terry stop into an
arrest.
16

It may be that the restriction on appellant's liberty felt more severe in this
private apartment than it would have felt in an open public setting, see Zapata,
18 F.3d at 975 (among factors indicating Terry detention rather than de facto
arrest was that encounter occurred in a public place), but appellant was neither
isolated nor in a law-enforcement environment, and his movements were
restrained no more than was minimally necessary for officers to conduct
investigative questioning. We note that, in addition to the two newly arrived
suspects and the law enforcement officers, there were four other individuals in
the apartment. Cf. Florida v. Royer, 460 U.S. 491 (1983) (suspect placed, with
two officers, in a closet-sized room approximately 40 feet from the original
encounter); Acosta-Colon, 157 F.3d at 16 (suspect was handcuffed and taken to
an interrogation room in a secured area "much farther than 40 feet" from where
he was stopped). The circumstances of the hallway inquiry, conducted very
quickly in this non-custodial setting, fell well short of an arrest.

17

3. The Pat-down Search. We agree with appellant and the district court,
however, that the pat-down search conducted by the officers exceeded the
permissible scope of a Terry detention. We are satisfied with the officers'
judgment that a pat-down was justified, in light of Bullon's expression of
concern for his safety if he betrayed Gorrito and the uncertainties of
confronting the two men in an apartment where at least three other individuals
of unknown allegiance were present. The officer who frisked appellant,
Trooper Marron, acknowledged, however, that he made no attempt to
distinguish between bulging items that could be weapons and other types of

concealed objects, reaching into appellant's pockets whenever he felt a

protrusion and emptying all items onto the floor. If this indiscriminate removal
of items embraced objects that were readily identifiable by touch as nonweapons, then the further invasion of appellant's privacy occasioned by
removing them from his pockets was unnecessary and thus unlawful. See
Terry, 392 U.S. at 29 (protective search for weapons "must . . . be confined in
scope to an intrusion reasonably designed to discover guns, knives, clubs, or
other hidden instruments for the assault of the police officer"); 4 Wayne R.
LaFave, Search and Seizure 9.5(c) (3d ed. 1996) (discussing "what tactile
sensations produced by the pat-down will justify a further intrusion into the
clothing of the suspect"); cf. Dickerson, 508 U.S. at 375-76 ("plain feel"
doctrine allows seizure of contraband detected during weapons frisk when "a
police officer lawfully pats down a suspect's outer clothing and feels an object
whose contour or mass makes its identity immediately apparent").
18

Although we recognize that searching by means of a pat-down is not an exact

science, the government does not even argue that Trooper Marron thought
appellant's wallet -- the item particularly at issue here -- could be a weapon. He
simply removed every bulging object as he searched, undoubtedly a convenient
method for detecting weapons, but one that goes beyond the limited invasion of
privacy authorized by Terry and its progeny. That the items were not actually
"seized" and retained by the officers -- and, indeed, might have been returned to
appellant had he asked -- minimizes the violation but does not erase it. We
therefore conclude that appellant was subjected to an unlawful frisk.
C. The Kitchen Encounter

19

We differ with appellant, however, in our assessment of the impact of that

constitutional violation.3 He claims that, once the officers had removed the
wallet from his pocket and placed it within sight on the kitchen table, he was
deprived of the choice to withhold its contents and thus was coerced into
turning over the license. The illegality of the pat-down, however, rests on the
assumption that the officers unquestionably knew that certain of the items they
removed from his pockets were not weapons. The wallet, in particular, was
most easily identified as a non-weapon, and was almost certain to have been
accurately recognized by feel. We are unpersuaded that the difference between
the officers' virtual certainty that he carried a wallet and the wallet's presence
on the kitchen table is so significant that appellant's yielding of the license in
the former case would be voluntary while in the latter it would be involuntary.
Indeed, we reached a similar conclusion as to the coerciveness of taking a
wallet in Forbes, 181 F.3d at 6 n.6, where we rejected the contention that an
officer's illegal removal of a wallet during a Terry frisk "would so overbear [the

suspect's] will that his failure to withdraw his consent [to a search] should be
deemed involuntary." Here, where the officers never, in fact, took possession of
the wallet - placing it on the floor and then on the table - we are similarly
unconvinced that the exposure of the wallet influenced appellant's decision to
respond to the demand for identification.
20

This is not to say, of course, that the circumstances were entirely free of
compulsion. The reality is that police officers seeking to obtain information
from a suspect in a Terry stop are likely -- and expected -- to use one or more
techniques with coercive impact, see Kolender v. Lawson, 461 U.S. 352, 364,
366 (1983) (Brennan, J., concurring); Zapata, 18 F.3d at 976-77, and they are
permitted to ask their questions "in a way calculated to obtain an answer,"
Kolender, 461 U.S. at 366 (Brennan, J., concurring). Although officers "may
not compel an answer," id. (emphasis in original); McCarthy, 77 F.3d at 531,

21

[d]uring such an encounter, few people will ever feel free not to cooperate fully
with the police by answering their questions. . . . Our case reports are replete
with examples of suspects' cooperation during Terry encounters, even when the
suspects have a great deal to lose by cooperating.

22

Kolender, 461 U.S. at 364 (Brennan, J., concurring). We are confident that this
was just such a situation. Faced with an officer pressing him for
"identificacion," we think it unsurprising that appellant responded with his
driver's license, just as Lara-Valirde answered with the incriminating
information that he was an illegal alien and had no identification. Indeed, there
is no basis for concluding that appellant knew that the license was facially
identifiable as a fake, and he may well have thought he could avoid greater
difficulty by presenting it. But whatever his precise motivation, we conclude
that disclosure of the license was not tainted by the earlier unlawful frisk.4

23

We therefore affirm the district court's denial of appellant's motion to suppress

the evidence of counterfeit document production that was obtained following
his arrest.

24

Affirmed.

NOTES:
1

The others were Massachusetts State Trooper Mark Marron, U.S. Customs
Agent James Burke, and Revere Police Department Detective Tony Arcos.

Campa testified at the suppression hearing that Trooper Marron removed the
license from his wallet without his consent, but the district court "d[id] not find
Campa credible on this point." In the absence of clear error, we accept the
district court's factual findings, particularly with respect to the credibility of
witnesses. United States v. Forbes, 181 F.3d 1, 7 (lst Cir. 1999). We find no
such error here and therefore assume that Campa handed the license to Marron.

The district court relied on the "inevitable discovery" doctrine to conclude that
the officers would have obtained the license regardless of the nature of the
frisk, holding that the officers could have taken the license from appellant even
if he had refused to produce it voluntarily. We have been pointed to no federal
cases supporting such an "identity search" exception to the Fourth
Amendment's warrant requirement, but find it unnecessary to consider the
question any further because of our conclusion that appellant turned over the
license voluntarily.

Appellant seems to argue that, even if the unlawful frisk had no effect on his
producing the license, it could have influenced his decision to cooperate in the
search of the Highland Street apartment because his "first instinct, given that
the officers already had his wallet, may have been to cooperate and confess."
We reject the suggestion that the government must disprove this highly
speculative scenario. There is no factual support for linking the post-arrest
cooperation with the illegal frisk. See Segura v. United States, 468 U.S. 796,
815 (1984) ("[O]ur cases make clear that evidence will not be excluded as 'fruit'
unless the illegality is at least the 'but for' cause of the discovery of the
evidence. Suppression is not justified unless 'the challenged evidence is in some
sense the product of illegal governmental activity.'") (citation omitted).