United States v. Vincent Anthony Magda

VAN GRAAFEILAND, Circuit Judge:

In an indictment filed in the Southern District of New York on September 24, 1975, Vincent Magda was charged with bank robbery and with assault committed during the course of the robbery. Thereafter, District Judge Robert L. Carter granted defendant’s pretrial motion to suppress evidence obtained as a result of an allegedly unlawful seizure of his person. United States v. Magda, 409 F.Supp. 734 (S.D.N.Y.1976). In a subsequent order, Judge Carter denied in part a motion of the United States for modification of the scope of the evidence suppressed. The United States has appealed from both orders.

On September 5, 1975, New York City Policeman Saverio Alesi was patrolling in uniform on Eighth Avenue between 42d and 45th Streets. At approximately 3:00 P.M. he observed appellee Magda talking with another man on the north side of 43d Street just west of Eighth Avenue. They were about thirty to thirty-five feet from Alesi, who was standing on the southwest corner of the intersection.

As Alesi watched the two men, he saw them exchange something. Although he could not see exactly what had changed hands, he did see that each man gave and received something simultaneously. After the exchange, the unidentified participant looked in the officer’s direction. Immediately after doing so, he turned away in a “rapid motion” and proceeded west on 43d Street. Meanwhile, Magda crossed 43d Street at an angle and started down Eighth Avenue toward 42d Street. As he passed, Alesi tapped him on the shoulder and asked him to stop. Magda turned to face Alesi and slowed his pace but continued down Eighth Avenue, walking backwards. The two men proceeded in this fashion for several steps, covering about ten feet before they both stopped.

Alesi inquired about what had taken place on 43d Street, and at first Magda said that nothing had happened. When asked a second time, Magda replied, “All right. I bought a marijuana cigarette for a dollar”, and produced the cigarette from his inside coat pocket. Alesi placed him under arrest and walked him back to 43d Street in a vain attempt to find the other man. Alesi then searched Magda and, upon discovering an unloaded handgun and a robbery demand note,¹ took him to the police station and booked him on gun and drug charges.² Subsequent investigation by the FBI linked the note with a robbery at the United Mutual Savings Bank in New York City and resulted in the instant indictment.

Judge Carter held that, if the police officer’s stopping of Magda was lawful, the arrest and search which followed the production of the marijuana were also lawful. With this, we agree. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Relying largely on New York law, he concluded, however, that the original stop constituted an unreasonable seizure of defendant’s person. With this, we disagree.

The reasonableness of Alesi’s conduct must be determined by balancing the need for the stop against the gravity of the intrusion which the stop entailed. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry Court found that the governmental interest in crime prevention and detection would permit a police officer in appropriate circumstances to “approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22, 88 S.Ct. at 1880. This principle was reaffirmed by the Court in Adams v. Williams, 407 U.S. 143,145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Relying on Terry and Adams, the Supreme Court held explicitly in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) that probable cause was not required to justify a brief investigative stop of a car suspected of transporting illegal aliens. The Court said that a reasonable suspicion that the vehicle contained illegal aliens would support this “minimal intrusion”. Id. at 881, 95 S.Ct. 2574. The Second Circuit has interpreted the above cases as authorizing brief investigative stops, of the type at issue here, based on reasonable suspicion. See Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286 (2d Cir. 1975); United States v. Salter, 521 F.2d 1326 (2d Cir. 1975); United States v. Santana, 485 F.2d 365 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490 (1974); United States v. Riggs, 474 F.2d 699 (2d Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973).

In applying this test, an investigative stop will be found constitutionally permissible if “the police officer [can] point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880. See United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. 2574. Under the circumstances present here, Alesi’s stop of Magda was reasonable.

We view as wise the admonition of the District of Columbia Circuit that “the circumstances before [the officer] are not to be dissected and viewed singly; rather they must be considered as a whole.” United States v. Hall, 525 F.2d 857, 859 (D.C.Cir. 1976). Alesi knew that the area where he first observed Magda had a high incidence of narcotics dealing. A map in his precinct house designated 43d Street between Eighth and Ninth Avenue as a “narcotics prone location”. McCaffrey Park, which is approximately 100 to 125 feet west of where the exchange took place, is particularly notorious as a center for drug traffic. Alesi testified that the park was under 24-hour surveillance. The reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely. See United States v. Brignoni-Ponce, supra, 422 U.S. at 884-85, 95 S.Ct. 2574. United States v. Hall, supra, 525 F.2d at 859.

Judge Carter found that Alesi had no “extraordinary skill” with regard to street arrests for narcotics. We are not prepared to hold, however, that “extraordinary skill” is the sine qua non of every constitutional police inquiry. Alesi had eleven years of experience as a policeman. He had been a foot patrolman for three and a half years and had made street arrests for narcotics before. Although he had made no prior narcotics arrests at the intersection in question during the six months he had been patrolling the Eighth Avenue area, he had seen other officers do so. The circumstances before Alesi “are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training”, United States v. Hall, supra, 525 F.2d at 859; cf. United States v. Wabnik, 444 F.2d 203, 205 (2d Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 88, 30 L.Ed.2d 91 (1971); and eleven years of police experience are not to be lightly brushed aside.

Alesi observed Magda and another man exchange something. After the exchange, Magda’s companion looked in Alesi’s direction, turned in a rapid motion and immediately walked away. Considering the locality, these observations were sufficient to raise a reasonable suspicion in a police officer of Alesi’s experience. Following Magda for the purpose of surveillance was an unsatisfactory alternative to briefly stopping him because Magda’s companion was leaving the scene in the opposite direction. See United States v. Santana, supra, 485 F.2d at 368. This is exactly the type of situation which the- “rather lenient” id. standard enunciated in Adams v. Williams, supra, was designed to accommodate.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Citation omitted).

Adams v. Williams, supra, 407 U.S. at 145-46, 92 S.Ct. at 1923.

A final factor in determining the reasonableness of Alesi’s conduct is the nature of the stop itself. “[T]he scope of the particular intrusion, in light of all the exigencies of the case, [is] a central element in the analysis of reasonableness. Terry v. Ohio, supra, 392 U.S. at 18 n.15, 88 S.Ct. at 1878. The findings made by the court below show that Alesi did not attempt to harass or intimidate Magda. He did not physically restrain Magda nor humiliate him in any way; he simply asked him to stop. When Magda did so, Alesi asked him what had transpired between him and the other man. When asked a second time, Magda voluntarily told Alesi about the marijuana cigarette which he then produced. This encounter was but a minor intrusion upon Magda’s personal security; it was reasonably related to the observations which had caused Alesi to become suspicious, and it did not exceed the extent of inquiry reasonably justified by those suspicions. It violated none of Magda’s constitutional rights.

The orders appealed from are reversed, and the case is remanded to the district court for further proceedings consistent herewith.³

1 . The demand note read as follows:

THIS IS A ROBBERY. KEEP YOUR HANDS WHERE I CAN SEE THEM AT ALL TIMES. THERE IS [SIC] TWO OF US SO DO AS YOU ARE TOLD AND NO ONE GETS HURT. PUT ALL YOUR 50’s AND 100’s INTO THE ENVELOPE AND HAND IT BACK.

2 . Magda was charged with state offenses related to his possession of the weapon and the marijuana cigarette. Basing his decision on a review of the applicable state law, Judge Alfred H. Kleiman of the Criminal Court of the City of New York, granted Magda’s motion to suppress the gun and cigarette. The state prosecution was subsequently discontinued.

As the court below properly held, Judge Kleiman’s decision has no collateral estoppel effect on the United States here. United States v. Paneblanco, 543 F.2d 447 (2d Cir. 1976). Moreover, in a federal prosecution, it is federal law, not state law, which determines whether a search or seizure conducted by state police officers was reasonable. Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); see United States v. Burke, 517 F.2d 377, 382 (2d Cir. 1975).

3 . Because of the disposition we have reached, it is unnecessary to consider the arguments of the parties which relate to the “fruit of the poisonous tree” doctrine.