Defendant-appellant William Michael Osbourne appeals the partial denial of his pretrial suppression motion, arguing that a statement made by the district court in the course of its extemporaneous oral ruling evinced both a misunderstanding and material misapplication of
Terry v. Ohio,
Late in the afternoon of September 18, 2001, Boston Police Detective Robert Fra-talia was driving in the Roxbury section of Boston to scout out locations where a youth violence investigative team with which he was working would be executing search warrants in the coming days. Federal agents Daniel Campbell and Michael Oppenheim accompanied Fratalia. The contemplated warrants were to target members of the Esmond Street gang, which Fratalia knew to be involved in drug trafficking, firearms offenses, and street violence with a rival gang. One of the residences to be searched was Osbourne’s. Fratalia had specific, knowledge that Os-bourne was a member of the Esmond Street gang’s “inner circle” and a likely target in the on-going feud with the rival gang. Fratalia also had been told that Osbourne carried a 9-millimeter firearm on his person at all times.
As he was driving down Walnut Street, Fratalia noticed Osbourne’s parked car. Fratalia then observed Osbourne himself walking down the street with one Clifford Carr. Although he contested it below, Os-bourne now concedes that, when Fratalia first spotted him, Fratalia had grounds to reasonably suspect that Osbourne was in unlawful possession of a firearm. Fratalia decided to act on his suspicion by conducting a Terry stop of Osbourne. He alerted Campbell and Oppenheim to Osbourne’s presence, pulled his police vehicle alongside of Osbourne and Carr, let Campbell and Oppenheim out, and parked the car diagonally across the sidewalk in front of them. At the suppression hearing, Frata-lia described what happened next:
Special Agent Campbell had gone towards ... Osbourne, Special Agent Op-penheim kind of stayed in back of Campbell closer to the curbing where it met the street. I got out of the vehicle and went immediately over to where Osbourne and Carr had been. Special *276 Agent Campbell did a quick pat-frisk of Mr. Osbourne and went right to Mr. Carr upon him seeing me being right next to him.
As Campbell began his pat-frisk of Carr, Fratalia conducted a pat-frisk of Osbourne. Almost immediately, Fratalia detected what he believed to be the handle of a gun in Osbourne’s waistband. He removed the item, discovered that it was a fully loaded 9-millimeter semi-automatic handgun, and arrested Osbourne.
On October 17, 2001, a grand jury indicted Osbourne for being a felon in unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2000). On February 27, 2002, Osbourne filed a written motion to suppress evidence of the gun (as having been seized in violation of
Terry)
and certain statements he made to the officers following his arrest (as having been elicited in violation of
Miranda v. Arizona,
From April 3 to April 5, 2002, the district court conducted a hearing on Os-bourne’s motion. Consistent with his written motion, Osbourne sought during the hearing only to develop grounds for arguing that Fratalia lacked a basis to reasonably suspect Osbourne of being unlawfully armed and dangerous when he first spotted him on the street. Consequently, the lion’s share of the parties’ closing arguments focused on the reliability of the data giving rise to Fratalia’s suspicion prior to the stop. But just before concluding (and after the government had completed its presentation), Osbourne’s counsel introduced an entirely new line of argument:
[L]et me actually go back because I skipped a very crucial point, if I may.
The testimony was that Detective Fratalia let Agent Campbell and Agent Oppenheim out of the car, and Agent Campbell frisked Mr. Osborne ... first.... So the question, and I think it is a significant question in this case, is what justified the second frisk. And I would suggest that that second frisk is not a legitimate frisk under Terry. Certainly not in the absence of any evidence that the first frisk was not thorough; not in the absence of any evidence that Agent Campbell — excuse me, that during the time between frisk number one and frisk number two Mr. Osbourne did anything that would suggest that he may have gained access to a weapon that was missed the first time. So, frisk number two I would suggest isn’t a Terry frisk at all. It’s a search. And it requires probable cause.
Now, that is consistent in terms of it being a protective frisk, even if it’s a frisk, that rationale evaporates if ... one of those officers has already done a protective frisk and has not found anything.
*277 Immediately after Osbourne’s counsel concluded, the district court issued an oral ruling denying Osbourne’s motion insofar as it sought to suppress evidence of the firearm as having been obtained in violation of the Fourth Amendment. The court first found facts consistent with the rendition we have just provided and concluded that Fratalia had grounds to reasonably suspect Osbourne of being unlawfully armed and dangerous when the episode began. As we have already stated, Os-bourne does not challenge this ruling on appeal. The court then addressed and rejected Osbourne’s argument that Frata-lia’s pat-frisk was unlawful because it followed Campbell’s and was unaccompanied by evidence that Campbell’s was incomplete or inadequate. In doing so, the court stated:
In the event, and this is an interesting wrinkle, it was not [Fratalia] who first pat-frisked Mr. Osbourne but it was Mr. Campbell, Officer Campbell, a younger officer, 1 and not part of Fratalia’s Boston Police force. Now, Fratalia was watching the situation. So he knew that Campbell had already touched, and characterized it as a pat frisk and I accept that.
And so the question is what justified Detective Fratalia from doing it himself? Well, it seems to me it was a rapidly evolving situation, and with two individuals, as Fratalia approached, Campbell moved over to Carr, it’s not clear that Oppenheim was doing anything but sur-veilling the scene, I think it was good police work. I don’t think there’s a limitation on the number of people who can pat-frisk you. And I think for his own safety, I don’t think fear need enter into it, I think for his own safety and those of the other officers Detective Fratalia, under the same standard, reasonable suspicion, though at that time there was not probable cause, could pat-frisk Mr. Osbourne, and then the weapon was discovered. That’s the Fourth Amendment analysis. (Emphasis supplied).
Construing the underlined text as reflecting a belief on the district court’s part that the “police may frisk a suspect as many times as they wish, assuming a lawful basis for the first frisk,” Appellant’s Br. at 9, Osbourne argues that the remark represents an erroneous distillation and application of
Terry
that undermines the court’s suppression ruling. If we shared Osbourne’s understanding of the statement, we would be inclined to agree. While many areas of Fourth Amendment doctrine are characterized by specific bright line principles designed for straightforward application by law enforcement officers,
see Atwater v. City of Lago,
*278
Rather, we regard the district court’s “there is no limitation” comment to be a rejection of what it understood to be Os-bourne’s own suggestion of an applicable categorical rule: that a second pat-frisk is
per se
unreasonable in the absence of evidence that the first frisk was cursory or that the subject of the frisk had an opportunity to arm himself in the interim. And in our view, the court was entirely correct to reject this suggestion.
Cf. Sokolow,
In the end, the reasonableness of a second or subsequent pat-frisk conducted pursuant to
Terry
is to be determined under a standard that takes account of the fact that “context is vital.”
United States v. Cook,
Accordingly, we affirm the court’s partial denial of Osbourne’s motion to suppress.
Notes
. All agree that this comment was mistaken and that there was no evidence that Campbell was younger than Fratalia.