United States v. Jose Ceballos

MESKILL, Circuit Judge

(dissenting):

I respectfully dissent.

I would hold that the stop of the defendant under the circumstances presented here was reasonable and that his subsequent arrest was clearly based upon probable cause. The majority does not dispute that the officers involved possessed “specific, objective and articulable reasons for subjecting [Ceballos] to an investigatory stop.” United States v. Buenaventura-Ariza, 615 F.2d 29, 33 (2d Cir. 1980); see Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868, 1879 , 20 L.Ed.2d 889 (1968). Indeed, the facts of this case clearly illustrate that the officers’ suspicion was justified. Daisy Zea, one of the occupants at the Bayside residence which Ceballos visited on the night of his arrest, had been under surveillance for approximately two months prior to the defendant’s arrest. The investigation had beyond any question furnished the officers with probable cause to believe that Zea was engaging in narcotics trafficking. 1 The record reveals that the building into which Ceballos entered on June 18, 1980 was a three-family home and that Zea resided on the second floor. Based upon the task force members’ prior observations of Zea’s activity, they knew that she conducted her business at her home, that the transactions only lasted a few minutes, and that her customers were Hispanic males.

On the night of June 18, the officers observed a van driven by a Hispanic male pull up in front of the residence. The driver exited the vehicle, entered the house, and then left a short while later. About ten minutes thereafter, Ceballos, also a Hispanic male, pulled up in front of the residence. He alighted from his car, “looked in both directions in a curious manner,” according to one of the officers, and entered the house. The officers, however, did not see into which of the three apartments within the house Ceballos entered. Ceballos was observed entering the house empty-handed, but upon exiting about five minutes later, he was seen carrying a small brown paper bag. “Again he looked in all directions,” and then got into his car and left.

Surely, reasonable suspicion to stop and question Ceballos existed at that point. The time of night, the reasonable cause to believe that narcotics activity was ongoing in one of the three apartments, the defend-

*187 ant’s furtive behavior before entering and after exiting the house, the duration of the suspect’s stay, that the suspect entered empty-handed but left carrying a small brown paper bag, the “hallmark” of the drug trade, United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973), cert. denied, 415 U.S. 931 , 94 S.Ct. 1444 , 39 L.Ed.2d 490 (1974); see also United States v. Bellamy, 436 F.2d 542 (2d Cir.), cert. denied, 402 U.S. 929 , 91 S.Ct. 1523 , 28 L.Ed.2d 862 (1971); United States v. Costello, 381 F.2d 698 (2d Cir. 1967), and that the suspect fit the profile of Zea’s customers, all supported a very strong suspicion that the suspect had engaged in a narcotics transaction and was in possession of narcotics. While as the majority notes, the “profile” factor has been previously considered by this Court relevant only in the airport search context, and even there has been held insufficient alone to support either reasonable suspicion, United States v. Buenaventura-Ariza, supra, 615 F.2d at 37 n.16, or probable cause, United States v. Price, 599 F.2d 494, 500-01 (2d Cir. 1979), I believe that the “profile” was an even more reliable factor here. In the case at bar, a specific narcotics dealer was observed to deal with a type of individual who fit one general profile, Hispanic males. Concededly, here, as in the airport cases, this factor alone would be insufficient to support reasonable suspicion; however, given the facts of this case, it was an appropriate factor to consider. See United States v. Brignoni-Ponce, 422 U.S. 873, 885, 887 , 95 S.Ct. 2574, 2582, 2583 , 45 L.Ed.2d 607 (1975).

The facts presented in this case led Judge Mishler to opine that Ceballos’ “possession of the small brown paper bag that he apparently acquired while inside the building in which Zea carried on her narcotics operation considered in conjunction with the time and duration of his visit may have established probable cause to believe that Ceballos was in possession of narcotics.” (Dist. Ct.Op. at 10). While I believe, contrary to Judge Mishler, that the level of information possessed by the officers fell slightly short of that which is required to support probable cause, it was certainly lawful under the circumstances to detain Ceballos momentarily for the purpose of limited inquiry. Adams v. Williams, supra, 407 U.S. at 146 , 92 S.Ct. at 1923 . We thus reach the point at which I part company with the majority. The majority concludes that the circumstances surrounding the stop of Ceballos made it tantamount to an arrest for which probable cause was necessary. While I noted in United States v. Vasquez, 612 F.2d 1338, 1345 (2d Cir. 1979), cert. denied, 447 U.S. 907 , 100 S.Ct. 2991 , 64 L.Ed.2d 857 (1980), that a “maximal intrusion” must be based on probable cause even where a defendant has not been subjected to a formal arrest, I am not of the opinion that the intrusion upon Ceballos in this case was by any means maximal. The majority states, “This is not a case ... in which the officers politely approach an individual and ask a few questions in a minimally intrusive manner, without drawing their guns or otherwise limiting the suspect’s freedom of movement.” I am at a loss to understand how the majority so blithely reached the conclusion that the Fourth Amendment requires that upon approaching a suspected narcotics trafficker in an automobile on a city street late at night, law enforcement officers must act without regard to their own safety and politely accord the suspect the amenities due a citizen at a country fair.

There is no litmus test to determine whether the conduct of law enforcement officers in a given case constitutes an “arrest,” as that term is used in Fourth Amendment case law, which must be supported by probable cause rather than the lesser standard of reasonable suspicion. Rather, the question to be addressed in close cases such as this is whether the “facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” Terry v. Ohio, supra, 392 U.S. at 21—22, 88 S.Ct. at 1879 -80 (quoting Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280, 288 , 69 L.Ed. 543 (1925)). See United States v. BrignoniPonce, supra. Thus, we have stated that “[t]he greater the intrusion, the stronger *188 the basis for the officer’s conduct must be” and that “if probable cause is lacking, the intrusion must be no greater than the circumstances require.” United States v. Orlando Vasquez, 638 F.2d 507, 520 (2d Cir. 1980).

In the case at bar, the officers decided to stop and question Ceballos about his possible participation in a narcotics transaction after the officers had gathered sufficient information to support their strong suspicion that such a transaction had occurred. The officers followed Ceballos’ car, and while he was stopped at a red light at an intersection, they blocked his progress from the front and rear. It was past 11:00 p. m. at the time of the stop and the officers cautiously approached Ceballos’ automobile. A few of the officers, according to the testimony at the hearing, may have had their guns unholstered, but there was no testimony that any officer leveled his gun at Ceballos. Officer Palumbo testified that as he approached the car he saw a brown paper bag between Ceballos’ legs. Ceballos was asked to get out of the car and as he did the bag fell to the ground. One of the other officers at the scene, Sgt. Colivato, then retrieved the bag which was partially opened and observed within it glassine envelopes containing white powder. At that point, the officers clearly had probable cause to believe that Ceballos was in possession of narcotics, and he was therefore properly placed under arrest. According to Officer Palumbo, only thirty seconds elapsed from the time Ceballos’ car was blocked until the time the white powder was discovered and Ceballos was placed under arrest. Thus, what had begun as a lawful Terry stop quickly ripened into an arrest.

Clearly, the blocking of Ceballos’ car under the circumstances here was not unreasonable. Considering the strong suspicion held by the officers that Ceballos was in possession of narcotics, the momentary blocking of his automobile at the intersection was reasonable and certainly preferable to a wild, reckless chase through dark city streets. Similarly, the officers’ request that Ceballos step out of his car was reasonable under the circumstances. The danger to law enforcement officers’ safety obviously is reduced when the driver is outside of the vehicle where his movements are in better view. Mention hardly needs to be made of the infamous role that violence has played in the illicit narcotics trade. See United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977). The law enforcement officials assigned to enforce our narcotics laws risk their lives daily and must be accorded sufficient latitude reasonably and lawfully to minimize the danger that incessantly confronts them. This is not a case in which one or more officers approached a suspect and ordered him out of his car at gunpoint, see United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958 , 89 S.Ct. 2099 , 23 L.Ed.2d 745 (1969); see also United States v. Ramos-Zaragosa, 516 F.2d 141 (9th Cir. 1975); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974). To the contrary, in the case at bar, while there was testimony that a few of the officers might have had their guns unholstered, there is no indication that any of the officers pointed a gun at Ceballos prior to his arrest. It is in my opinion far from unreasonable for an officer to have his gun ready When approaching a suspect in an automobile late at night who is strongly suspected of having just engaged in a narcotics transaction and of being in possession of narcotics. See generally United States v. Jackson, 652 F.2d 244, 249 (2d Cir. 1981); United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914 , 98 S.Ct. 1466 , 55 L.Ed.2d 504 (1978); United States v. Coades, 549 F.2d 1303, 1305 (9th Cir. 1977) (per curiam); United States v. Russell, 546 F.2d 839, 840 (9th Cir. 1976); United States v. Diggs, 522 F.2d 1310, 1314 (D.C.Cir.1975), cert. denied, 429 U.S. 852 , 97 S.Ct. 144 , 50 L.Ed.2d 127 (1976).

Upon all of the facts involved in this case, see Rios v. United States, 364 U.S. 253, 262 , 80 S.Ct. 1431, 1436 , 4 L.Ed.2d 1688 (1960), I would affirm the district court and hold that the stop of Ceballos was reasonable and that his subsequent arrest was properly based upon probable cause.

. From mid-April until May 13, 1980, task force members frequently observed Zea conducting what appeared to be narcotics transactions at her previous residence. Following the arrest of one of Zea’s customers, she moved to the Bay-side three-family house. Surveillance of Zea continued from May 20, 1980 until June 18, 1980. Throughout this period Zea and her brother were observed driving a car in an erratic manner and suspiciously parking it at an unusual distance from their home. On June 18, 1980, the day of Ceballos’ arrest, Zea and another woman were again observed driving in an erratic manner. Zea parked her car several blocks from her residence and entered her house carrying a hat box and a beige-colored bag.