United States Court of Appeals

For the First Circuit

No. 00-1104

UNITED STATES OF AMERICA,

Appellee,

v.

ANDRES CAMPA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

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.

December 12, 2000

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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

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
1 The others were Massachusetts State Trooper Mark Marron,

U.S. Customs Agent James Burke, and Revere Police Department

Detective Tony Arcos.

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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.
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 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. LaraValirde 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
2 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.

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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.

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
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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, 487-88 (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
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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

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
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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

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.

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
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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

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
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exceeded the bounds of a permissible Terry stop and thus

constituted a de facto arrest unsupported by probable cause.

 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
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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.

 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
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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. 

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); AcostaColon, 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.
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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 non-weapons, 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
3 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

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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").

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

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

impact of that constitutional violation.3 He claims that, once
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.

 

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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,
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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.

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,

[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.

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
4 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).

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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

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.

Affirmed.