* Of the Second Circuit, sitting by designation

.



# United Stat es Court of Appeals

For the First C ircuit

No. 04-1053 UNITED STATES OF AMERICA, Appellee,

v. EDWARD COFIELD, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge ]

Before Lynch, Circuit Judge , Leval, * Senior Circuit Judge ,

and Lipez, Circuit Judge .

John F. Palmer , for appellant. James F. Lang , Assistant United States Attorney, with whom Michael J. Sullivan , United States Attorney, and Frank M. Gaziano , Assistant United States Attorney, were on brief, for appellee.

December 10, 2004-2-

LEVAL, Senior Circuit Judge . The defendant Edward Cofield brings this appeal from his conviction in the United States District Court for the District of Massachusetts for possession of heroin in violat ion o f 21 U.S.C. § 844(a), and being a convicted felon in possession of a firearmand ammunition in violation of 18 U.S.C. § 922(g). The defendant moved to suppress evidence seized from him by the Boston police following his arrest. The district court conducted a hearing and denied the motion. The defendant then entered a conditional plea of guilty, preserving his right to appeal from the denial of the suppression motion. Defendant was sentencedto 180 months imprisonment, foll owed b y three years of supervised release on the firearms count, and to concurrent terms of 12 months imprisonment and a year of supervised release on the heroin count. He brought this appeal. We affirm. Background On the afternoon of June 15, 2001, Officer Kenneth Hearns of the Boston Police Department, a plainclothes narcotics investigator, saw the defendant Cofield on Washington Street in Roxbury. Hearns recognized Cofield, fro m havi ng arrested him on January 10, 2000 after seeing himchase and attempt to stab another

man. Wh en the police officers had overtaken and apprehended Cofieldon that prior occasion, they had found a knife on his person and a bundle of thirteen bags of heroin on the ground next to him. Cofield had been charged with heroin possession and armed-3-

assault. Hearns knew that Cofield had failed to make a cour t appearance on that charge a nd was wanted as a fugitive. He confirmedby police radio that there was a warrant outstanding for Co field ’s arrest and made contact with backup. He was joined by Officers Jay Broderick and Michael Ross to assist in the arrest. The officers approached Cofield and told him he was under arrest. Cofieldstruggled to free himself from the officers’ grasp, but was

soon handcuffed. Officer Broderi ck quickly frisked Cofield’s pockets and found a glassine bag containing heroin. While they waited for a police car to transport Cofield to the nearby precinct, the officers noticed that Cofield was acting

nervous and “high-strung.” Cofieldsaid to Hearns, “If I ran right now, would you be mad at me?” The officers decided to search Cofield once he had been transported to the station house. Among their reasons for not searching him more fully on th e str eet was the desire to avoid calling attention to themselves and compromising their undercover roles. Appr o ximately ten minutes after arrival at the station house, Hearns undertook to search Cofield. Th e sea rch was conducted in a hallway near the booking desk. There were no other people under arrest there at the time. Hearns began to search Cofield’s hat and shoes without finding anything. He then asked Cofield to open his denim shorts. Cofield turned to face the wall and dropped his shorts. Hearns then told himto take his underwear down. Cofield took his underwea r dow n-4-

slowly and carefully, using two hands. Hearns, observing from behind, saw a dark object sticking out from the u nderpants. As Cofieldlowered his underpants slowly, a .32 caliber Beretta pistol fell out. Cofield kicked it under his denim shorts. The police quickly recovered it. The present prosecution was based on Cofield’s possession of the heroin, the pistol, and the ammunition. Cofield’s motion to suppress was based on the a rgument that the officers lacked the necessary degree of probable cause, reasonable suspicion or concern for their safety that would justify

a strip search. After holding an evidentiary hearing, the district court denied the motion on the grounds that (1) the circumstances supporteda reasonable suspicion that Cofield was in possession of weapons and/or narcotics, and (2) the officers had good reason to fear for their safety. The c ourt ma y also have relied on inevitable discovery. This doctrine was discussed during argument, but was not expressly relied on in the court’s final summary of its ruling. Discussion The lawfulness of a strip search depends on w het her the circumstances reasonably justify such an i ntrus ive invasion of privacy. Bell v. Wolfish , 441 U.S. 5 20, 559 ( 1979); Swain v. Spinney , 117 F.3d 1, 5-6 (1st Cir. 1997). Appellate review is de

novo. See, e.g. , United States v. Sargent , 319 F.3d 4, 8 (1st Cir. 2003). In considering the question of reasonableness, a court must1 Without suggesting that there were not reaso nab le grounds

to search based on possible posses sio n of narcotics, we also consider the threat to officer safety. We recognize that Officer Hearns testified that the motivation of his search was to find narcotics. Nonetheless, if an objectiv e as sessment of the circ umst ances would have justified a concern about a concealed weapon, a court properly takes that concern into account in det ermining the reasonableness of the search, even though it wa s not the searching officer’s motivation. See , e.g. , Whren v. United States , 517 U.S. 806, 8 13-14 (1996) (finding that the Supreme Court’s “c ases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved” and stating that “the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent”); United States v. Weems , 322 F.3d 18, 23-24 (1st Cir. 2003) (“[T]he subjective intent of the police plays no role in the analysis of a motion to suppress under the Fourth Amendment. . . . R ather, the question is whether [the search was] objecti vel y reasonable under the Fourth Amendment.”). -5- assess the totality of the circumstances, including “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell , 441 U.S. at 559. The inquiry is of a practical nature, calling for a sensible assessment of the circumstances. Well-justifiedconcern fo r t he safety of police officers can of course furnish important justification. The police officers had excellent reason to believe that Cofield might be in possession of both weapons and narcotics, and that he might pose a threat to their safety. 1 There was also good

reason to believe such things might be hidden in his underwear. Among the circumstances which supported such a co nce rn were the following: Officer Hearns knew Cofield to be a narcotics dealer;2 This court has observed in discussing the reasonableness of

a strip search that “[i]t is commo n knowledge that controlled substances often are concealed on the person of users and dealers alike.” Burns v. Loranger , 907 F.2d 233, 238-39 (1st Cir. 1990). -6- officers had found a glassine baggie of heroin in Cofield’s exterior pocket, suggesting a likelihood that he may have more heroin on his person; from his own personal experience, as well as his professional familiarity with narcotics traffic, Officer Hearns knew that narcotics dealers often carry narcotics and weapons concealedin their undershorts; 2 and Cofield had appeared tense and

nervous and had struggled to avoid arrest. Fur thermore, the previous year Hearns had seen Cofield try to stab a man and had foundCofield to be in possession of thirteen bags of heroin. All these circumstances supported a reasonable inference that Cofield might well be concealing a w eapon , posing a danger to the police andothers, as well as contraband narcotics evidence, which Cofield might find a way to hide or dispose of if it was not promptly secured. Bell also requires consideratio n of t he manner in which the search is conducted, with attention to whether it exceeds reasonable bounds or is done in a needlessly humiliating fashion or with improper motivation. See Roberts v. Rhode Island , 239 F.3d 107, 113 (1st Cir. 2001); Swain , 11 7 F .3d at 8. In the present case, the strip search was conducted in a professional manner with

no more intrusi on tha n necessary to accomplish the proper law-7-

enfor cement purpose. The officers did not require Cofield t o
assume humiliating poses, expose himself in an unnecessarily public place or to members of the opposite sex, remain exposed for unreasonable durations, or endure degradation or ridicule. Nor was there any suggestion of any abusive or unprofessional motivation on the part of the officers. Compare Swain , 117 F.3d at 8 (“distinct possibility” that stri p se arch was ordered to “impos[e] sexual humiliation . . . as a punishment for . . . non-cooperation”), with Woodv. Hancock County Sheriff’s Dep’t , 354 F.3d 57, 69 (1st Cir. 2003) (notin g appe llant did not challenge manner of search where “done in a private area, by a single officer of the same gender, andwithout physical contact”); Roberts , 239 F.3d at 113 (manner of search reasonable where conducted in private, search was entirely visual, and no accusations of abuse); Burns v. Loranger , 907 F.2d 233, 235 & n.6 (1st Cir. 1990) (noting plaintiff did not challenge

manner of strip search, where visual search only, performed by officer of same gender, and in a private location). Nor was the strip search unreasonable in relation to th e nature and seriousness of the offenses in which Cofield was believed to be involved. Cofield was a fugitive on the seri ou s charges on which Hearns had first arrested him in January 2000. He was now subject to prosecution for the earlier assault and heroin offenses, his flight to avoid that prosecution, and the new heroin dis cove redthrough the Washington Street pat-down. See Roberts ,3 Because we affirm on the basis of the reasonableness of the

search, we have no need to rule on the alternate ground of the inevitability of the gun’s discovery. See , e.g. , Nix v. Williams , 467 U.S. 431 (1984) (applying the doctrine of inevitable discovery to admit evidence); United States v. Scott , 270 F.3d 30, 42-45 (1st Cir. 2001) (same); United States v. Ford , 22 F.3d 374, 377-81 (1st Cir. 1994) (same); United States v. Silvestri , 787 F.2d 736 (1st Cir. 1986) (same). -8- 239 F.3d at 112 (more latitude to strip search prisoners charged with offenses “generally associated with weapons or contraband”);

see also Miller v. Kennebec County , 219 F.3d 8, 12 (1st Cir. 2000) (agreeing with district court that there was ample evidence to find strip searches unjustified, “particularly” because offense for which plainti ff was detained gave rise to no suspicion of concealment of weapons or contraband). Considering all these circumstance s, we believe that the district court was eminently justified in concluding that the search was r easonably conducted and well within the standards of Bell . 3 Affirmed.