USCA1 Opinion
June 13, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2094
UNITED STATES,
Appellee,
v.
JOSE A. BERNARDO-RODRIGUEZ,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Mar a H. Sandoval, by Appointment of the Court, for
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appellant.
Warren V zquez, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, and Jos A. Quiles-
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Espinosa, Senior Litigation Counsel, were on brief for appellee.
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Per Curiam. Defendant-appellant Jos A. Bernardo-
Per Curiam
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Rodr guez appeals his conviction for possession with intent to
distribute two kilograms of cocaine in violation of 21 U.S.C.
841(a)(1). Specifically, Bernardo-Rodr guez claims that his
conviction rests on evidence found in an unlawful search, and the
district court's denial of his motion to suppress this evidence
was in error. For the following reasons, we affirm.
BACKGROUND
BACKGROUND
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We view the facts in the light most favorable to the
ruling court's decision to the extent that they derive support
from the record and are not clearly erroneous. United States v.
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Sealey, 30 F.3d 7, 8 (1st Cir. 1994). While working at the Luis
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Mu oz Mar n International Airport in Puerto Rico on May 23, 1993,
Puerto Rico Police Officer Rafael Pacheco-Cruz ("Officer
Pacheco") noticed the appellant acting nervously and avoiding
contact or confrontation with airport or law enforcement
officials. Bernardo-Rodr guez was walking awkwardly and sweating
profusely, yet was wearing a jacket completely buttoned. Officer
Pacheco observed a square-shaped object protruding from the right
side of Bernardo-Rodr guez' abdominal area. Officer Pacheco
followed Bernardo-Rodr guez to the control station at the
gateway, where he observed Bernardo-Rodr guez nervously trying to
adjust the front of his jacket.
At the control station, Bernardo-Rodr guez passed
through the metal detector once uneventfully. At Officer
Pacheco's request of airport security personnel, Bernardo-
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Rodr guez was directed to remove his jacket and walk through the
metal detector a second time. While Bernardo-Rodr guez was
removing his jacket, one of his shirt buttons became unbuttoned,
allowing Officer Pacheco to more clearly see the square-shaped
object protruding from the right side of his stomach. The
officer then moved to Bernardo-Rodr guez' left and observed the
same sort of square-shaped object there. At this point, Officer
Pacheco approached Bernardo-Rodr guez and asked, "What do you
have there?" Bernardo-Rodr guez replied, "What are you talking
about?" The officer repeated his question, slightly touching
Bernardo-Rodr guez' abdomen. Officer Pacheco then asked
Bernardo-Rodr guez to follow him. Once out of public viewing,
Officer Pacheco asked Bernardo-Rodr guez to lift his shirt. When
Bernardo-Rodr guez complied with this request, two packages
strapped to his abdomen under a lycra exercise belt became
visible.1 Officer Pacheco then arrested Bernardo-Rodr guez and
seized the packages, in which cocaine was later found.
ANALYSIS
ANALYSIS
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As explained above, we review findings of fact on a
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1 Bernardo-Rodr guez testified that he never voluntarily lifted
his shirt, but that Officer Pacheco lifted it without Bernardo-
Rodr guez' consent. He now contends that the magistrate judge
erred in disregarding his version of events and crediting that of
Officer Pacheco. Credibility determinations, however, are the
province of the presiding court in a suppression hearing, and we
review them only for clear error. United States v. Zapata, 18
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F.3d 971, 975 (1st Cir. 1994). This deferential standard stems
from the presiding court's opportunity to hear the testimony,
observe the witnesses' demeanor, and evaluate the facts first-
hand. Id. Because we find no indication in the record that the
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magistrate judge's credibility determinations were clearly
erroneous, we uphold his factual findings.
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motion to suppress only for clear error. Zapata, 18 F.3d at 975.
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Notwithstanding the deference given to factual determinations,
however, we review questions of law de novo. Id.
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In challenging the denial of his motion to suppress,
Bernardo-Rodr guez' primary contention is that the seizure of the
cocaine was the result of an illegal "pat-down" frisk search by
Officer Pacheco. Specifically, he challenges the presiding
court's finding that Officer Pacheco's detention of Bernardo-
Rodr guez was a lawful Terry stop. See Terry v. Ohio, 392 U.S.
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1, 23 (1968). Bernardo-Rodr guez contends that under Terry,
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Officer Pacheco could not lawfully touch him in the abdomen,
because he had already gone through a metal detector and
therefore could not have had a weapon. Officer Pacheco's slight
touching of his abdomen, says Bernardo-Rodr guez, rendered the
detention unlawful, and the contraband found as a result should
have been suppressed.
It is elementary that under Terry, "where a police
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officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be
afoot," the officer may briefly stop the suspicious person and
make reasonable inquiries aimed at confirming or dispelling his
suspicions. Terry, 392 U.S. at 30. The officer may also conduct
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a patdown search, or "frisk," where the officer is justified in
believing that the person is armed and dangerous to the officer
or others. Id. This protective search must be "limited to that
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which is necessary for the discovery of weapons which might be
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used to harm the officer or others nearby." Id. at 26.
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In the instant case, however, the contraband was not
found through the disputed touching, but only after Bernardo-
Rodr guez had lifted his shirt and Officer Pacheco saw the
packages. The narrow issue, therefore, is whether Officer
Pacheco's slight touching of Bernardo-Rodr guez' abdomen was
sufficiently coercive to convert the detention into an unlawful
seizure, and thus render the subsequent consensual search
invalid. We find that it was not.
If otherwise lawful Terry stops become sufficiently
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coercive, they become de facto or constructive arrests, and thus
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must be supported by probable cause rather than mere reasonable
suspicion. Zapata, 18 F.3d at 975. In such cases, reviewing
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courts must determine whether under the circumstances "'a
reasonable man in the suspect's position would have understood
his situation' . . . to be tantamount to being under arrest."
Id. (citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). If
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so, then probable cause must support the officer's detention and
use of force on the suspect. Id. If probable cause is not
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present, then the stop is an unreasonable seizure, and any
subsequent consent given by the suspect to further searches is
deemed involuntary. Id.
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Although physical contact is relevant to the
reasonableness of a suspect's perception that he is under arrest,
not every physical contact between an officer and a suspect
constitutes coercion. Zapata, 18 F.3d at 977. We have recently
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recognized that an officer need not have probable cause for
certain de minimis uses of force incident to legitimate
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investigatory stops. Id. In Zapata, we rejected the appellant's
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argument that a slight touching by the officer during an
investigatory stop rendered the seizure invalid, holding that a
"modest laying-on of hands" by an officer on a suspect during a
otherwise lawful investigatory stop did not convert the detention
into an unlawful arrest unsupported by probable cause. Id. at
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976-77.
Officer Pacheco's initial detention of Bernardo-
Rodr guez was certainly supported by reasonable suspicion,
particularly given the square objects visibly protruding from
Bernardo-Rodr guez' abdomen, and his unusual, nervous behavior.
Moreover, we believe that Officer Pacheco's slight, unintrusive
touching -- hardly more than a gentle poke -- of Bernardo-
Rodr guez' abdomen during the lawful detention was de minimis.
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It is much less intrusive than a pat-down or handcuffing, both of
which have been upheld as lawful uses of physical force incident
to a Terry stop. See Zapata, 18 F.3d at 977 (citing United States
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v. Willis, 967 F.2d 1120, 1223 (8th Cir. 1992) and Tom v. Voida,
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963 F.2d 952, 958 (7th Cir. 1992)). The touching is simply
insufficient to convert the stop into a constructive arrest
unsupported by probable cause. We conclude that Bernardo-
Rodr guez was not unlawfully seized and therefore find that his
motion to suppress was properly denied.
For these reasons, we affirm his conviction.
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