* Of the Tenth Circuit Court of Appeals, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 04-2075

UNITED STATES OF AMERICA,

Appellee,

v.

KEITH BARBOZA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. Chief District Judge]

Before

 Boudin, Chief Circuit Judge,

Torruella, Circuit Judge,

and Baldock,* Senior Circuit Judge.

Theodore B. Heinrich, Assistant U.S. Attorney, with whom

Michael J. Sullivan, U.S. Attorney, was on brief for appellee.

Randolph M. Gioia was on brief for appellant.

June 15, 2005
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BALDOCK, Senior Circuit Judge. We address a single issue

in this appeal: Whether, during an initial pat-down for weapons,

an officer’s insertion of his index finger into the instep of a

suspect’s “mid-top” sneaker exceeded the proper scope of a

protective search.

I.

The relevant facts are undisputed. Boston police

officers witnessed Defendant speaking with suspected gang members

on a street in Boston known for gang violence. Moments later,

during an investigatory stop (the legality of which Defendant does

not challenge), Defendant identified himself to police officers as

Keith Barboza. Officer Robert Fratalia recognized Defendant’s name

based on police intelligence as that of a gang-affiliated

individual who routinely carried a firearm. Based on his

knowledge, Officer Fratalia commenced a pat-down search of

Defendant. A pat-down of Defendant’s outer clothing, including his

shoes, was unremarkable. Officer Fratalia next ran his index

finger between Defendant’s ankle (the record is unclear as to which

ankle) and the inside of Defendant’s mid-top sneaker. Officer

Fratalia did so as a result of a past experience in which he

discovered a handgun concealed in the shoe of a suspect already in

custody. Officer Fratalia felt a hard metal object between the

sole of Defendant’s shoe and his foot which the officer believed to

be a firearm. A search of Defendant’s shoe uncovered a .25
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caliber, semi-automatic pistol loaded with eight rounds of

ammunition.

Defendant was indicted for being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g). Following the

district court’s denial of his motion to suppress, Defendant

entered a conditional guilty plea. The district court sentenced

Defendant to seventy months imprisonment and he appealed. Our

jurisdiction arises under 28 U.S.C. § 1291. We review the district

court’s determination that Officer Fratalia acted reasonably when

he inserted his index finger into the instep of Defendant’s sneaker

de novo. See United States v. Sargent, 319 F.3d 4, 8 (1st Cir.

2003). Applying this standard, we affirm.

II.

The Fourth Amendment does not require police officers to

take unnecessary risks in the performance of their duties. The

purpose of a protective search in the absence of probable cause is

not to discover evidence of a crime, but to neutralize the threat

of physical harm to police officers and others. See United States

v. Nee, 261 F.3d 79, 84-85 (1st Cir. 2001). To determine whether

a protective search of a person violated the Fourth Amendment

(i.e., was objectively unreasonable) in the absence of probable

cause, a court asks whether the officer’s actions were reasonably

related in scope to the circumstances that justified the initial

lawful detention. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
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“Limited searches of a person for weapons are constitutionally

permissible adjuncts to a Terry stop if ‘a reasonably prudent man

in the circumstances would be warranted in the belief that his

safety or that of others was in danger.’” Nee, 261 F.3d at 83

(emphasis added) (quoting Terry, 392 U.S. at 27). Necessarily

then, courts develop the limitations which the Fourth Amendment

places upon protective searches “in the concrete factual

circumstances of individual cases.” Terry, 392 U.S. at 29.

III.

Defendant argues Officer Fratalia’s concern about a

weapon hidden in his shoe was unreasonable and did not justify

extending the search beyond a pat-down of his outer clothing.

According to Defendant, his weapon posed no danger to the officers

because it was not “readily accessible.” To be sure, Officer

Fratalia acknowledged at the suppression hearing that Defendant

would have had to remove his shoe to access the weapon. The

problem with Defendant’s argument is that when Officer Fratalia

placed his finger into the instep of Defendant’s mid-top sneaker,

he did not know the weapon was “inaccessible.” What Officer

Fratalia did know based upon the surrounding facts and

circumstances, and the inferences to be drawn therefrom, was that

Defendant might well be armed. See id. at 21. Officer Fratalia’s

belief was objectively reasonable. See id. As the Supreme Court

explained in Michigan v. Long, 463 U.S. 1032 (1983), a case
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extending the lawful scope of a protective search to a vehicle’s

passenger compartment:

When the officer has a reasonable belief “that

the individual whose suspicious behavior he is

investigating at close range is armed and

presently dangerous to the officer or to

others, it would appear to be clearly

unreasonable to deny the officer the power to

take necessary measures to determine whether

the person is in fact carrying a weapon . . .

.”

Id. at 1047 (quoting Terry, 392 U.S. at 24).

Officer Fratalia’s minimally intrusive search of

Defendant’s sneaker for the purpose of locating a concealed weapon

was not unreasonable merely because Defendant might have been

fractionally delayed in employing it against the officers or

others. As the district court noted, Defendant might have placed

the weapon in the side of his sneaker, making it readily

accessible. Moreover, Defendant could have fled from the officers

and, in so doing, retrieved the weapon from his shoe. See id. at

1051. In addition, if Officer Fratalia had not placed Defendant

under arrest, Defendant would have been free to go, providing him

once again with ready access to his weapon. See id. at 1052. We

hold under the totality of the circumstances of this case that

Officer Fratalia’s insertion of his index finger into the instep of

the Defendants mid-top sneaker did not exceed the proper scope of

his protective search.

AFFIRMED.