ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Criminal No. 92-00590-3).
Before: Hutchinson and Nygaard, Circuit Judges and Garth, Senior Circuit Judge.
Norman Edwards appeals from an order denying his motion to suppress evidence used to convict him for his role in credit card fraud and theft. Because we find that the evidence was obtained lawfully pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), we will affirm.
The Fairfield Township Police broadcasted an all-points transmission reporting a credit card fraud in progress at the Midlantic Bank in Fairfield, New Jersey. While responding to the bank, Officer Crapello testified that he received a second radio message describing a red Chrysler LeBaron convertible with two occupants and New York license plate "ZPT777" as "believed to be involved or may be involved" in the suspected bank fraud.
Officer Crapello arrived at the bank approximately ninety seconds after the first message, and saw a red Chrysler LeBaron convertible in the bank parking lot bearing license plate ZPT777. As the message had described, the car had two occupants, later determined to be defendant Edwards and one Anthony Sears. The convertible top was down, and both occupants were visible. Officer Crapello pulled his patrol car in front of the LeBaron. Officer Kane, in a second patrol car, boxed the LeBaron in from behind to prevent or inhibit an escape attempt.
Officer Crapello approached the passenger side of the LeBaron on foot, with the thumb snap of his holster released and his hand on his service revolver. Officer Kane crouched behind his patrol car door. A third patrol car arrived and Officer Polizzi and a police dog also approached the suspects' vehicle. When Officers Crapello and Polizzi were approximately eight feet from the car, Polizzi instructed the dog to bark. Until then, both occupants of the LeBaron appeared to be sleeping. In response to the dog's bark, Edwards lifted his head, looked around and then nudged Sears, who awoke with a start. After instructing Edwards and Sears to put their hands on the dashboard, Crapello saw a jacket on Edwards' lap. He reached in and removed the jacket. When he patted the outside of the jacket to check the pockets for weapons, Crapello detected "a large, hard, bulky object" in its inner pocket. He removed a manila envelope, folded once in half but not sealed, from the jacket. Feeling the "hard, bulky" object in the envelope, Officer Crapello unfolded it and looked inside for a weapon. Instead of a weapon, he found several credit cards and New Jersey drivers' licenses, which he determined from visual inspection to be fraudulent.
Edwards was arrested and indicted for possession and use of counterfeit credit cards. 18 U.S.C. § 1029(a). After an evidentiary hearing on Edwards' motion to suppress the evidence found in the manila envelope, the district court denied the motion. United States v. Edwards, No. 92-590, slip op. at 9 (D.N.J. June 8, 1993). Apparently finding that the officers' actions did not constitute an arrest, id. at 6-8, the district court did not decide whether the officers had probable cause to arrest before they opened the manila envelope.
The district court held that Officer Crapello's actions in opening the envelope without a warrant were justified under Terry, supra. A Terry stop is permissible when the police have a reasonable suspicion based on articulable facts that a crime has been committed. Id. at 21, 88 S. Ct. at 1880-81. Edwards does not argue that the police lacked reasonable suspicion to conduct an investigatory Terry stop. Instead, he argues that both the subsequent Terry protective pat down and the ultimate search of the envelope were unlawful.1. Reasonableness of the Frisk
First, Edwards argues that the police had no reason to believe he was armed and dangerous, and thus could not lawfully conduct a Terry protective pat down. In Terry, the Supreme Court held that a police officer, during the course of a Terry stop, may conduct a "reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual...." Id. at 27, 88 S. Ct. at 1883. The test is "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. (citations omitted). Finally, in determining whether the officer acted reasonably under the circumstances, "due weight must be given, not to his ...