United States v. Arnott

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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