Professional Documents
Culture Documents
United States v. Schiavo, 1st Cir. (1994)
United States v. Schiavo, 1st Cir. (1994)
_____________________
TORRUELLA,
appeal,
Circuit Judge.
______________
the government
challenges
the
In
this
interlocutory
district court's
order
motor vehicle
We affirm.
BACKGROUND
BACKGROUND
__________
a drug
investigation by federal
State Police.
government provided
As part of
agents and
the
with $9,000
drugs.1
Centurian Pub
On November
in
4, 1991, the CI
Sutton, Massachusetts,
and gave
met Winter at
1991.
that Winter
him the
cash,
money.
be Winter's
source of cocaine.
After Winter
left the
Worcester.
After
He then
Centurian Pub,
he went
to his
Pub in Chelsea.
agents
had
Prior to Winter's
followed
arrived, Schiavo's
Schiavo
to this
location.
When Winter
Winter remained
____________________
in
his
Approximately
five
minutes
after Winter
left,
of the
his vehicle,
and
Thomas P.
and several
Duffy
of the
other investigating
$9,000.
Massachusetts
agents had
State
developed a
to meet
with Schiavo to give him the money that he had just received from
the CI.
In the event
As
Schiavo
Massachusetts,
signalled
to
parking lot of
vehicle.
who
was
pull over.
in
Somerville,
dressed
in
uniform,
Schiavo pulled
into the
out of his
Schiavo
stood up
Duffy immediately
left side of
asked
he did
Schiavo if
not.
Schiavo
after
retrieving
the
here?,"
Street
the Chandlery
registration.2
Trooper
Broadway
Duffy,
Schiavo to
Duffy followed
drove onto
Trooper
plan, Trooper
Schiavo's jacket.
he
Pointing to
had a
weapon.
the bulge
responded, "Mostly."
Trooper
in
you
Duffy
____________________
2 Trooper Duffy was wearing a transmitting
encounter with Schiavo.
-3-
device during
his
about the
him that it
nature of the
was a bag.
At that
bulge and
Schiavo
the pat
frisk, Schiavo
he was not
carrying a weapon.
inside his coat.
to show Trooper
that Schiavo
his hands.
Trooper Duffy
noticed
asked what it
a brown
contained.
bag
Schiavo
inside
stated,
bag, he found that it contained the white New Balance plastic bag
that the
$8,500.
from
pants.
CI had
given to
Winter
earlier.
The bag
contained
Schiavo's shirt
In
pocket and
total, Trooper
the two
Duffy seized
front pockets
$12,500 from
of his
Schiavo,
his
indictment,
Schiavo
filed
motion
to
to Trooper Duffy
pat
frisk, the
doctrine espoused in
"plain feel"
Minnesota v.
_________
Dickerson, 113 S. Ct. 2130 (1993), did not justify seizure of the
_________
money
during the
Terry protective
_____
patdown
search.
The court
-4-
not have
a justification to
seize the
money
and
Morales,
_______
review
district
suppression hearing,
law, for
929
the
clear error.
F.2d 780,
deference, however,
wrong legal standard.
783
court's
findings
fact,
(1st Cir.
1991).
of
of
v. Rodr guez__________
We afford
no
__
PLAIN FEEL DOCTRINE
PLAIN FEEL DOCTRINE
___________________
and
v. Dickerson, 113
_________
well
delineated
S. Ct. 2130,
exceptions."
reasonable
suspicions."
may briefly
inquiries
Id.
__
the
aimed
the suspicious
at
confirming
(internal citations
reasonably to conclude
or
person
and quotations
and make
dispelling
officer is justified in
may be afoot
his
omitted).
search where
person is armed
and
This
search
must
be
discovery of
harm
or others
the officer
"limited
to
that
nearby."
Id.
__
at 26;
which
is
be used
to
Dickerson at
_________
2136.
During
seize an
probable
cause to
some further
character
believe it
search of
is
is contraband
the object,
"immediately
without a warrant
i.e., if
apparent."
without conducting
its incriminating
Dickerson
_________
if they have
at
2136-37.
officer to seize
conducted the
bounds marked
by Terry at the
_____
that the
Id. at 4548.
__
him
officer who
believe"
Id. at 2137-38.
__
bulge
time he gained
in Schiavo's
within the
lawful
probable cause to
jacket was
contraband.3
We quote
-6-
described in Dickerson.
_________
incriminating nature
"immediately apparent"
of the
allowed under
bulge in Schiavo's
pocket was
not
Trooper Duffy
Terry."
_____
Id. at
__
4548.
Trooper Duffy's
Schiavo's pocket
. . the
_____
protection
Id. at
__
Supreme
Court
of the likely
warrantless searches of
Clause
has
held that
in
light
disappearance of a
a vehicle do not
of
the
vehicle,
In Acevedo, the
_______
cause to
search a
located in the
require "the
container, in that
trunk of
police to obtain
case, a
brown paper
bag
not
a warrant to
in a
currency
Although the
government
was
pursuant
seized
government does
maintain
seizure
money without a
person
of the
417
U.S.
States,
______
583,
413
590
to
the
search,
the
justified
The search
of one's
by the Fourth
Cardwell
________
Almeida-S nchez
_______________
(1973)
that
circumstances
of an automobile.
179
contend
vehicular
warrant.
(1974) (citing
U.S. 266,
not
that exigent
is more intrusive on
does
(Powell, J.,
v. Lewis,
_____
v.
United
______
concurring)).
an automobile
of a person.
need
a warrantless search
enforcing
unreasonable
upon probable
reasonable search
Maroney,
_______
399 U.S.
the
Fourth
searches
and
cause
as a
permitted by
42,
Amendment's
seizures,
minimum
the
-8-
Court
requirement for
the Constitution."
51 (1970);
prohibition
has
Chambers v.
________
v.
Ramsey, 431
______
search of Schiavo
time of
court's finding
Duffy lacked
probable
In
4
The government argues that probable cause developed during
Trooper Duffy's encounter with Schiavo.
This contention is
without merit.
This argument overlooks the district court's
factfinding. The district court found that, "only after Trooper
Duffy had taken the bag of money from Schiavo's jacket and
examined its contents was he able to determine what the bulge
was."
This is a fact-specific finding, well within the district
court's ken.
Given
the "greatly circumscribed" scope of
appellate review
applicable to
Following
the
Supreme Court's
decision
in Dickerson, the
_________
district court reconsidered and reaffirmed its initial Order
allowing Schiavo's motion to suppress the currency seized.
-9-
finding
We
by the
therefore
district
affirm the
court
district
is not
court's
clearly
order
suppressing
the evidence
seized
during the
stop of
Schiavo's
vehicle.
Affirmed.
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