United States v. Arnott , 758 F.3d 40 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1881
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL ARNOTT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Thompson and Selya, Circuit Judges,
and McConnell,* District Judge.
Peter J. Cyr and Law Offices of Peter J. Cyr on brief for
appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.
July 2, 2014
*
Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. After the district court denied
his motion for suppression, defendant-appellant Paul Arnott entered
a conditional guilty plea, see Fed. R. Crim. P. 11(a)(2), reserving
his right to challenge the suppression ruling. Following the
imposition of sentence, the defendant acted upon this reservation
and appealed. Having given the matter due consideration, we
affirm.
I. BACKGROUND
We rehearse the facts as found by the district court
(explicitly or implicitly) at the suppression hearing, consistent
with record support. See United States v. Gonzalez, 609 F.3d 13,
15 (1st Cir. 2010).
This case has its genesis in a court order issued on
November 16, 2011, which authorized a wiretap on a cellular
telephone in the possession of James Brichetto (a suspected drug
peddler). Between November 16 and December 28, federal agents
overheard a host of drug-related conversations between Brichetto
and his customers. During the same period, officers surveilled in
real time an assortment of drug deals in which Brichetto was
involved.
On December 28, agents intercepted a call between
Brichetto and a potential customer, Michael Leavitt, in which
Leavitt sought to purchase approximately 100 oxycodone pills.
Brichetto asked whether Leavitt was with someone else, and Leavitt
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responded affirmatively. As the conversation wound down, Brichetto
and Leavitt agreed to meet in the parking lot of a Walmart store in
Scarborough, Maine.
Officer Joshua Guay, a member of the Scarborough police
force seconded to work with a Drug Enforcement Administration task
force, witnessed the meeting. Brichetto arrived in a silver truck
that had been seen during previous drug deals. He parked next to
a Saturn sedan. A passenger, later identified as Leavitt, left the
Saturn and got into Brichetto's truck. After a few minutes,
Leavitt returned to the Saturn. Both vehicles then departed.
Officer Guay trailed the Saturn and notified a fellow
Scarborough police officer, Tim Dalton, that what appeared to have
been a drug deal had been consummated. Although Officer Guay
believed that sufficient grounds existed to stop the Saturn based
on what he knew and had seen, the investigation of Brichetto's
operation was continuing and the officer was concerned about
prematurely disclosing the existence of the wiretap. Thus, he
asked Officer Dalton to try to find a traffic-related reason to
stop the car. This request proved to be superfluous; Officer Guay
saw the Saturn roll through a stop sign and, when he relayed this
information to Officer Dalton, the latter initiated a traffic stop.
After arranging for backup, Officer Dalton approached the
Saturn and demanded identification from both the driver (the
defendant) and the passenger (Leavitt). Leavitt tried to pass
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himself off as "William Young" and professed not to have any
identification on his person. The defendant, though exhibiting an
extraordinary level of anxiety, handed over his driver's license.
In response to questions, he gave vague answers.
Officer Dalton directed the defendant to leave the
vehicle and conducted a pat-down for weapons.1 He felt a hard
object in the defendant's pocket, which he suspected was a knife.
Queried about how to access the pocket, the defendant unzipped it.
Officer Dalton reached into the pocket and removed a bag of tightly
wrapped blue pills that the defendant admitted were oxycodone.
When queried about other drugs in the car, the defendant
replied that the trunk contained a quarter pound of marijuana.
Next, Officer Dalton handcuffed the defendant and escorted him to
the patrol car. To that point, no Miranda warnings had been given.
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
In due course, a federal grand jury indicted the
defendant on one count of conspiracy to possess and distribute
oxycodone, see 21 U.S.C. §§ 841(a)(1), 846, and one count of
possession of oxycodone with intent to distribute, see id.1
The government suggests in passing that the defendant may
have consented to this pat-down. A valid consent would vitiate the
defendant's Fourth Amendment challenge to the pat-down. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States
v. Lee, 317 F.3d 26, 33 (1st Cir. 2003). Because we find the pat-
down lawful on other grounds, see text infra, we do not probe this
point.
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§ 841(a)(1).2 The defendant moved to suppress both the drugs
seized during the traffic stop and his incriminating roadside
statements. The government opposed the motion.
The district court conducted an evidentiary hearing and
thereafter refused to suppress any evidence. In its bench
decision, the court ruled that both the stop and the search were
justified because the police had probable cause to believe that the
defendant had committed a drug-trafficking offense. The court
further ruled that Officer Dalton was not obligated to give the
defendant Miranda warnings before handcuffing him because the
questioning up to that point was non-custodial.
Following the defendant's conditional guilty plea to the
substantive offense charged in the indictment3 and the imposition
of sentence, the defendant appealed.
II. DISCUSSION
When reviewing the district court's disposition of a
motion to suppress, we accept the court's findings of fact unless
they are clearly erroneous. See United States v. Chhien, 266 F.3d
1, 5 (1st Cir. 2001). Conversely, we assay the court's legal
conclusions, including its answers to "the ultimate questions of
2
For aught that appears, no federal charges were brought
against the defendant with respect to the marijuana found in his
car.
3
As part of the conditional plea agreement, the government
voluntarily dismissed the conspiracy charge.
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reasonable suspicion and probable cause to make a warrantless
search," de novo. Ornelas v. United States, 517 U.S. 690, 691, 699
(1996). In applying these standards of review, we take the record
evidence in the light most favorable to the suppression ruling.
See United States v. McGregor, 650 F.3d 813, 823-24 (1st Cir.
2011); United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999).
Lastly, we are not wed to the district court's reasoning but,
rather, may affirm its suppression rulings on any basis apparent in
the record. See United States v. Doe, 61 F.3d 107, 111-12 (1st
Cir. 1995).
We begin with a few words of explanation: although we
reach the same destination as the district court, we get there by
a somewhat different route. The district court engaged in a
probable cause analysis. This analysis, though likely supportable,
elevates the bar higher than necessary. In our view, this case can
appropriately be treated as a Terry stop, see Terry v. Ohio, 392
U.S. 1, 19-20 (1968), which requires only reasonable suspicion as
a predicate for the officer's actions.
It is common ground that a traffic stop constitutes a
seizure of both the stopped vehicle and its occupants for Fourth
Amendment purposes. See Chhien, 266 F.3d at 5. Consequently, a
traffic stop must satisfy a standard of objective reasonableness.
See Terry, 392 U.S. at 19; United States v. Ruidíaz, 529 F.3d 25,
28-29 (1st Cir. 2008).
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The objective reasonableness of a Terry stop must be
gauged in two phases. The police are not allowed to make an
initial stop unless they have a reasonable, articulable suspicion
about an individual's involvement in some criminal activity. See
Terry, 392 U.S. at 21; Chhien, 266 F.3d at 6. If the initial stop
passes muster, actions undertaken during the course of the stop
"must be reasonably related in scope to the stop itself unless the
police have a basis for expanding their investigation." Ruidíaz,
529 F.3d at 28-29 (internal quotation marks omitted).
The standard of reasonable suspicion is protean and case-
specific. Reasonable suspicion requires more than a naked hunch,
see United States v. Sokolow, 490 U.S. 1, 7 (1989), but less than
probable cause, see Chhien, 266 F.3d at 6. In the broad expanse
between these two poles, the court's assessment must be made in
light of the totality of the circumstances. See United States v.
Romain, 393 F.3d 63, 71 (1st Cir. 2004). The totality of the
circumstances includes, but is not limited to, "various objective
observations, information from police reports, if such are
available, and consideration of the modes or patterns of operation
of certain kinds of lawbreakers." United States v. Cortez, 449
U.S. 411, 418 (1981).
In the last analysis, reasonable suspicion is more a
concept than a constant: it deals with degrees of likelihood, not
with certainties or near certainties. It makes due allowance for
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the need for police officers to draw upon their experience and
arrive at inferences and deductions that "might well elude an
untrained person." United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting Cortez, 449 U.S. at 418). By like token, an
appraisal of an officer's conduct after the initial Terry stop
necessarily entails an element of flexibility: the officer "may
shift his focus and increase the scope of his investigation by
degrees if his suspicions mount during the course of the
detention." Chhien, 266 F.3d at 6.
With these jurisprudential stanchions in place, we move
from the general to the specific. In the first instance, the
defendant challenges the reasonableness of both the initial traffic
stop and the subsequent pat-down.4
We need not linger long over the initial stop. Agents
monitored Brichetto's nefarious activities for several weeks.
During this interval, the structure of many of Brichetto's drug
deals closely paralleled the events of December 28, 2011. A
pattern was readily evident, and Officer Guay (a 12-year veteran)
himself had observed Brichetto-inspired deals that fit into this
pattern. The intercepted telephone calls, the repeated
surveillances, the evident pattern, and Officer Guay's December 28
4
Because it is not necessary for us to consider the existence
vel non of probable cause, see text supra, we do not reach the
defendant's challenge to the district court's probable cause
determination.
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observations in the Walmart parking lot yielded ample reason to
suspect that the Saturn's occupants had just participated in a drug
deal. That constituted reasonable suspicion adequate to justify
stopping the Saturn.5 See, e.g., Ruidíaz, 529 F.3d at 30.
This brings us to the validity of the frisk. Although
the district court made no express findings on this point, we must
view the record and the reasonable inferences extractable therefrom
in the light most favorable to the court's suppression ruling. See
McGregor, 650 F.3d at 823-24; Owens, 167 F.3d at 743.
The defendant claims that the frisk was improper because
Officer Dalton lacked any reason to suspect that the defendant
presented a danger. The officer's assertions to the contrary, the
defendant argues, were merely a pretext to enable him to conduct an
evidentiary search.
We think that the defendant protests too much. The
totality of the circumstances gave Officer Dalton reasonable
grounds to suspect that the defendant might be dangerous. The
defendant appeared unduly nervous when questioned; his hands were
shaking so badly that he could scarcely hold out his driver's
license. Moreover, the police had strong reasons to believe that
5
To be sure, Officer Guay witnessed the Saturn roll through
a stop sign; and that traffic infraction provided an independently
sufficient ground for stopping the car. See New York v. Class, 475
U.S. 106, 125 (1986); McGregor, 650 F.3d at 822. Inasmuch as the
district court did not see any need to rely on this circumstance,
we set it to one side.
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the occupants of the Saturn (one of whom carried no identification)
had just concluded a drug-related transaction. The connection
between drugs and violence is, of course, legendary. See, e.g.,
United States v. Randle, 815 F.2d 505, 508 (8th Cir. 1987).
In these circumstances, Officer Dalton's apprehension of
danger was reasonable. Thus, he had an adequate security-related
ground to pat the defendant down for weapons. See Terry, 392 U.S.
at 30.
Seizing the oxycodone pills as part of the search was
also reasonable. Officer Dalton felt a hard object in the
defendant's coat and reasonably concluded that it resembled a
knife. He was, therefore, within his rights to remove the object
from the defendant's pocket. See, e.g., Michigan v. Long, 463 U.S.
1032, 1050 (1983) (holding that contraband discovered during a
legitimate search for weapons need not be suppressed under the
Fourth Amendment).
The defendant's reliance on Minnesota v. Dickerson, 508
U.S. 366 (1993), is misplaced. There, the Court affirmed the
suppression of cocaine discovered by an officer only after
"squeezing, sliding and otherwise manipulating the contents of the
defendant's pocket — a pocket which the officer already knew
contained no weapon." Id. at 378 (internal quotation marks
omitted). No remotely comparable circumstances existed here.
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The next claim of error questions whether the defendant's
inculpatory roadside statements warranted suppression. The court
below thought not, and we agree.
At their inception, Terry stops generally do not require
Miranda warnings. See United States v. Teemer, 394 F.3d 59, 66
(1st Cir. 2005); United States v. Streifel, 781 F.2d 953, 958 (1st
Cir. 1986). Instead, they afford officers some latitude to
question witnesses about issues for which the officers have
reasonable suspicion. See, e.g., Chhien, 266 F.3d at 9-10. Here,
the questions posed by Officer Dalton were directly tied to his
legitimate discovery of contraband on the defendant's person.
Thus, the questioning did not approach (let alone cross) the outer
bounds of a Terry stop.
Nor can we fault the district court's determination that
Officer Dalton's roadside questioning of the defendant was non-
custodial. During the brief period of interrogation, the defendant
had been neither arrested nor restrained. He was on a public
roadway and was being quizzed by a single officer who made no show
of force. The district court's finding that the interrogation was
non-custodial is, therefore, unimpugnable.6 See, e.g., United
States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999).
6
We add a coda. The defendant's brief is enigmatic about
which statements he believes should have been suppressed. Given
this lack of specificity, any claim of error relating to the
statements may well be waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the district court's denial of the motion to suppress.
Affirmed.
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