* Of the Tenth Circuit Court of Appeals, sitti ng by

designation. 

# United Stat es Court of Appeals

For the First C ircuit
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, w it h whom Michael J. Sullivan , U.S. Attorney, was on brief for appellee. Randolph M. Gioia was on brief for appellant.

June 15, 2005-2- BALDOCK, Senior Circuit Judge . We address a single issue in this appeal: Whether, during an initial pat-down for weapons,
an officer’s insertio n of his i ndex finger into the instep of a suspect’s “mid-top” sn eake r exceeded the proper scope of a protective search. I.

The relevant facts are undispu ted . Boston police officers witnessed Defendant speaking with suspected gang members
on a street in Boston known fo r ga ng 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 basedon police intelligence as that of a gang-affiliated individual who routinely carr ied 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 unremarkab le. O fficer 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 discovereda 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 sear ch of De fendant’s shoe uncovered a .25-3-

caliber, semi-automatic pistol loaded with eight rounds of ammunition.

Defendant was indicted for being a felon in possession of
a fir earm in violation of 18 U.S.C. § 922(g). Following the district court’s denial of his motio n to suppress, Defendant entereda conditional guilty plea. The distri ct cou rt 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 Unit ed 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 violate d the Fourth Amendment (i.e., was objectively unreasonable) in the absence of probable cause, a court asks whether the officer’s actions were reasonably relatedin scope to the circumstance s that justified the initial lawful detention. See Terry v. Ohio , 392 U.S. 1, 19-20 (1968).-4-

“Limitedsearches of a person for weapon s ar e 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 t hat 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 conc r ete 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-d own 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 D e fendant wouldhave had to remove his shoe to access the weapon. The problemwith 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 Frat alia 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 explainedin Michigan v. Long , 463 U.S. 1032 (1983), a case-5-

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 a gainst 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 fromthe 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 holdunder 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.