Date: 02-14-2018

Case Style:

Case Number: 16-2465

Judge: Selya

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Benjamin M. Block and Halsey B. Frank

Defendant's Attorney: Joshua L. Gordon

Description: Todd Rasberry found himself in a
jam: during a pat-down incident to a Terry stop, see Terry v. Ohio,
392 U.S. 1, 19-20 (1968), an agent of the Drug Enforcement
Administration (DEA) discovered a softball-sized object stashed in
Rasberry's undershorts. Believing that the object contained
drugs, the agent arrested Rasberry on the spot. A subsequent
search of Rasberry's person proved the agent's prescience.
Following his indictment for controlled substance
offenses, Rasberry moved to suppress, arguing among other things
that the seizure of the contraband violated the "plain feel"
doctrine. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
After the district court denied his motion, Rasberry tendered a
conditional guilty plea. The court accepted the plea and sentenced
Rasberry to serve 138 months' imprisonment.
We reject Rasberry's attempt to pigeon-hole the seizure
that occurred within the narrow confines of the "plain feel"
doctrine. Here — as in most Terry stop cases — the reasonableness
of the search and seizure is informed by the totality of the
circumstances. Applying this metric, we affirm the district
court's denial of Rasberry's motion to suppress.
I. BACKGROUND
We rehearse the facts as found by the district court at
the suppression hearing, consistent with record support. See
United States v. Gonzalez, 609 F.3d 13, 15 (1st Cir. 2010). For
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some years, Paul Wolf, a DEA agent, had been on the trail of a
major drug dealer known to him only as "Champagne." Though
Champagne proved elusive, Wolf finally got a lead indicating that
he was in fact a man named Todd Rasberry. With the help of a
cooperating source, Wolf was able to track down one of Rasberry's
accomplices while she was making drug deliveries in Portland,
Maine. When Wolf confronted the accomplice, she surrendered the
heroin she was carrying and told Wolf that he would find Rasberry,
along with more drugs, at a motel room she had rented in
Scarborough, Maine. The accomplice gave Wolf a key to the room
and consented to its search.
Accompanied by other officers (federal and local), Wolf
proceeded to the motel where Rasberry was allegedly ensconced.
The officers knew that Rasberry had a criminal history including
drug and weapons charges, and he had been arrested only a few
months earlier at a party where guns were present. As a result,
the officers were armed and wore ballistic vests.
When the officers arrived at the motel, Wolf tried the
room key that he had been given, but discovered that it did not
work. Once he knocked, though, Rasberry opened the door and
acknowledged that he was a guest in the motel room (which had been
rented by the woman with whom Wolf had spoken). The officers told
Rasberry that they were there to search the premises and that,
although he was not under arrest, he would be detained while they
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conducted the search. One officer placed Rasberry's hands behind
his back and handcuffed him; he then patted down only the portion
of Rasberry's lower back that Rasberry might be able to reach
despite being handcuffed. Two other officers, with weapons drawn,
conducted a sweep of the premises to make certain that nobody else
was present.
For roughly twenty minutes, the officers searched the
motel room with great care. They found plastic sandwich bags,
needles, and a digital scale, but no drugs. With the search
winding down, Rasberry asked if the handcuffs could be removed.
Wolf replied that before he could remove the handcuffs, he had to
make sure that Rasberry did not have a weapon.
As Wolf performed a pat-down, he felt (in the groin area
of Rasberry's shorts) a hard, round object about the size of a
softball. Wolf inquired as to the nature of the object, and
Rasberry responded that it was part of his anatomy. At that point,
Wolf — confident that the object was not part of Rasberry's anatomy
but, rather, was contraband — placed Rasberry under arrest.
Reaching into Rasberry's undershorts, Wolf extracted a ball of
baggies containing what appeared to be controlled substances. A
field test subsequently confirmed that some of the baggies
contained heroin and others contained cocaine.
In due course, a federal grand jury sitting in the
District of Maine returned a three-count indictment against
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Rasberry for various controlled substance offenses. Rasberry
moved to suppress the drugs seized from his person, arguing that
the search and seizure had violated his Fourth Amendment rights.
See U.S. Const. amend. IV. The district court held a hearing at
which Wolf and his three fellow officers testified. The district
court took the matter under advisement and later denied the motion
to suppress. In its order, the court held, in substance, that
what had transpired constituted a lawful Terry stop; that placing
Rasberry in handcuffs was reasonably necessary to ensure the
officers' safety; and that the duration of the detention was
reasonable because the officers were diligently searching the room
during that interval. Finally, the court upheld the seizure of
the drugs from Rasberry's undershorts on alternative grounds:
first, the court adopted the argument, put forward by the
government, that the drugs were lawfully seized under the "plain
feel" doctrine; and second, the court concluded that, in light of
the totality of the circumstances, the officers had probable cause
to arrest Rasberry, search him incident to his arrest, and seize
the drugs.
Rasberry proceeded to enter a conditional guilty plea,
see Fed. R. Crim. P. 11(a)(2), to a single count of possession of
heroin with intent to distribute, see 21 U.S.C. § 841(a)(1). After
accepting Rasberry's conditional plea (explicitly preserving
Rasberry's right to appeal the denial of his suppression motion),
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the district court imposed a 138-month term of immurement. The
government then dismissed the other two counts of the indictment,
and this timely appeal followed.
II. ANALYSIS
Our standard of review is familiar. Ultimate
constitutional determinations with respect to issues such as
reasonable suspicion and probable cause engender de novo review.
See Ornelas v. United States, 517 U.S. 690, 699 (1996); United
States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007). And while
the district court's other conclusions of law are also reviewed de
novo, its factual findings must be accepted unless they are clearly
erroneous. See United States v. Chhien, 266 F.3d 1, 5 (1st Cir.
2001). Determinations about witness credibility are inherently
fact-based and, thus, are peculiarly within the competence of the
district court. See United States v. Baldacchino, 762 F.2d 170,
175 (1st Cir. 1985).
As a practical matter, Rasberry's asseverational array
can be divided into four parts. First, he asserts that his
detention in the motel room exceeded the lawful scope of a Terry
stop. Second, he asserts that the pat-down during which the
softball-sized object was discovered was conducted without
reasonable suspicion. Third, he asserts that the seizure of the
softball-sized object was not justified under the "plain feel"
doctrine. Fourth, he asserts that the search of his undershorts
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was so invasive that it offended both his dignity and his right to
privacy under the Fourth Amendment. We examine these assertions
one by one.
A. The Scope of the Stop.
The Fourth Amendment guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const. amend.
IV. This constitutional protection does not pretermit all searches
and seizures, but only those that are unreasonable. See Terry,
392 U.S. at 9. A brief investigatory stop "based on a reasonable
suspicion that criminal activity may be afoot does not violate the
Fourth Amendment, even in the absence of probable cause." United
States v. Pontoo, 666 F.3d 20, 27 (1st Cir. 2011) (citing Terry,
392 U.S. at 29-30). Such stops are commonly called Terry stops.
In contrast to a Terry stop, an arrest requires that the
detaining officer have probable cause to believe that a crime has
been committed. See Hayes v. Florida, 470 U.S. 811, 815-16 (1985);
United States v. Chaney, 647 F.3d 401, 408 (1st Cir. 2011).
Probable cause is a prerequisite not only for a formal arrest but
also for a de facto arrest. See Chaney, 647 F.3d at 408.
Judicial review of a Terry stop involves a "two-step
appraisal." Pontoo, 666 F.3d at 26. To begin, the stop must be
justified at its inception. See United States v. Acosta-Colon,
157 F. 3d 9, 14 (1st Cir. 1998). Then, as the stop proceeds, the
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officers' actions must be "reasonably related in scope to the
circumstances which justified the interference." Id. (quoting
United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997)).
Rasberry does not dispute that — at the moment the motel
room was entered — the officers had reasonable suspicion sufficient
to initiate a Terry stop. Instead, Rasberry's challenge to the
lawfulness of the stop focuses on the events that subsequently
transpired. He submits that the behavior of the officers (such as
placing him in handcuffs and brandishing weapons) and the duration
of the stop (about twenty minutes) pushed the stop past the
boundaries of a lawful Terry stop and combined to transmogrify the
stop into a de facto arrest.
In this case, the distinction between a Terry stop and
a de facto arrest is of decretory significance. After all, the
government concedes that the officers did not have probable cause
to arrest Rasberry at the moment they entered the motel room. We
turn, then, to the proper characterization of the events.
Because a Terry stop allows an individual to be detained
without probable cause, the police actions associated with the
stop must be less intrusive than those that are permissible in the
course of an arrest. See Pontoo, 666 F.3d at 30. If a stop begins
as a Terry stop but becomes too intrusive, it will morph into a de
facto arrest. See Hayes, 470 U.S. at 815-16; Acosta-Colon, 157
F.3d at 14. The dispositive question is whether a reasonable
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person standing in the suspect's shoes would understand his
position "to be tantamount to being under arrest." United States
v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).
To be sure, there are no "scientifically precise
benchmarks for distinguishing between temporary detentions and de
facto arrests." Morelli v. Webster, 552 F.3d 12, 20 (1st Cir.
2009). In determining the category into which a particular set of
events falls, a reviewing court necessarily must consider the
totality of the circumstances. See Chhien, 266 F.3d at 6; see
also United States v. Cortez, 449 U.S. 411, 417 (1981) (directing
consideration of "the whole picture"). An inquiry into the
totality of the circumstances is informed by the reasonableness of
the officers' conduct in light of the situation that they face.
See Terry, 392 U.S. at 19-20; Acosta-Colon, 157 F.3d at 15.
Typically, such an inquiry involves examining, among other things,
"the length of the detention, the restrictions placed on an
individual's personal movement, the force (if any) that was
exerted, the information conveyed to the detainee, and the severity
of the intrusion." United States v. Sowers, 136 F.3d 24, 28 (1st
Cir. 1998).
Notwithstanding the limitations on Terry stops, officers
must be allowed, during the course of such a stop, to take measures
that are reasonably calculated to protect themselves or others
from harm. See Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir. 2004);
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Acosta-Colon, 157 F.3d at 18. To pass muster, though, such
prophylactic measures must be proportionate to the perils
associated with the particular circumstances. See Pontoo, 666
F.3d at 30. Security precautions, such as the use of handcuffs,
must be based on the officers' "reasonable belief that the use of
such restraints was necessary to carry out the legitimate purposes
of the stop without exposing law enforcement officers, the public,
or the suspect himself to an undue risk of harm." Acosta-Colon,
157 F.3d at 19. The inquiry is case-specific: although often
indicative of an arrest, see id. at 18, "neither the use of
handcuffs nor the drawing of a weapon necessarily transforms a
valid Terry stop into a de facto arrest," United States v. Fornia-
Castillo, 408 F.3d 52, 64 (1st Cir. 2005).
Concerns for officer safety are heightened in the close
confines of a motel room. See Chaney, 647 F.3d at 410. There is
a pressing "need for officers to safely secure the scene." Id. at
410. Moreover, the motel room in which Rasberry was found had
very thin walls, and any gunfire would have posed a grave danger
to occupants of adjoining rooms. To cinch matters, Rasberry was
a suspected drug trafficker, and "[t]he connection between drugs
and violence is . . . legendary." United States v. Arnott, 758
F.3d 40, 45 (1st Cir. 2014). This legendary connection was of
particular concern in this case because the officers were entering
an unfamiliar space to confront a suspect who they knew had a
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criminal history involving firearms and who had recently been
present in locations where guns were found.
Taking the total mix of facts into account, we agree
with the district court that the officers had a reasonable basis
to suspect that Rasberry might be armed and dangerous. By entering
the premises with guns drawn and immediately handcuffing Rasberry,
the officers acted responsibly to ensure their safety and the
safety of others as their search of the premises took place. At
the same time, the officers made it clear to Rasberry that he was
not under arrest but, rather, was simply being detained while they
searched the room. We discern no error, clear or otherwise, in
the district court's determination that the officers' execution of
the stop was within the permissible scope of a Terry stop. See
Pontoo, 666 F.3d at 30; Chaney, 647 F.3d at 410.
Nor did the duration of the encounter exceed the
parameters of a lawful Terry stop. A twenty-minute detention may
be lengthier than the paradigmatic Terry stop, but the length of
a Terry stop, taken in a vacuum, does not convert an otherwise
lawful Terry stop into a de facto arrest. See United States v.
Owens, 167 F.3d 739, 749 (1st Cir. 1999). Whether a Terry stop is
of an appropriate duration is gauged by whether the officers were
"diligently pursu[ing] a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it
was necessary to detain the defendant." United States v. Sharpe,
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470 U.S. 675, 686 (1985). Here, the district court supportively
found that the officers were assiduously engaged in activities in
furtherance of the investigation for the entire time of the
detention. Seen in this light, the court did not err in finding
that the twenty-minute length of the stop failed to convert it
into a de facto arrest. See Owens, 167 F.3d at 750 (finding stop
that lasted fifty minutes was not a de facto arrest); United States
v. McCarthy 77 F.3d 522, 531 (1st Cir. 1996) (finding seventy-five
minute detention remained a Terry stop because officers were not
"engaged in dilatory tactics" and "their investigative efforts
[were] reasonable under the circumstances").
That ends this aspect of the matter. The stop in this
case was proportional to the circumstances and lasted no longer
than was reasonably necessary to search the motel room and dispel
suspicion that illegal drugs were hidden there. Consequently, the
district court did not err in concluding that the stop was a lawful
Terry stop.
B. The Pat-Down.
In preparation for removing Rasberry's handcuffs, Wolf
undertook a full pat-down of Rasberry's person. Rasberry contends
that there was no legal justification for this pat-down because
the initial frisk, performed when he was first handcuffed, sufficed
to dispel any suspicion that he might be armed. The district court
rejected this contention, and so do we.
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A police officer may frisk a suspect on reasonable
suspicion that the suspect is armed and dangerous. See United
States v. Scott, 270 F.3d 30, 41 (1st Cir. 2001); see also Terry,
392 U.S. at 27. In this instance, the full pat-down was preceded
by an initial frisk some twenty minutes earlier. The district
court found, however, that the initial frisk was confined to the
area of Rasberry's lower back. This finding is consistent with
the officers' testimony at the suppression hearing, and it is not
clearly erroneous. And where, as here, the first frisk is limited,
it will not automatically dispel a reasonable suspicion that the
suspect may be armed. See United States v. Osbourne, 326 F.3d
274, 278 (1st Cir. 2003). In appropriate circumstances, a second
frisk may be justified. See id. This is such a case: because the
first frisk was restricted to Rasberry's lower back, we cannot say
that the district court erred in finding that Wolf had a reasonable
suspicion that Rasberry might be carrying a weapon elsewhere on
his person.
C. The Seizure of the Softball-sized Object.
As he was conducting the second pat-down, Wolf felt a
softball-sized object hidden in Rasberry's undershorts. After
Rasberry dissembled by insisting that the object was part of his
anatomy, Wolf arrested him and proceeded to extract the object.
Rasberry challenges the constitutionality of this seizure.
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The district court upheld the seizure on alternative
grounds. The first of these grounds is questionable. The court
— following the government's lead — invoked the "plain feel"
doctrine, under which a police officer can seize an object if, by
touch, its incriminating character is "immediately apparent."
United States v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994) (quoting
Dickerson, 508 U.S. at 375). Thus, the doctrine permits an officer
who conducts a lawful pat-down of a suspect's outer clothing to
seize an object if its incriminating character is immediately
apparent by touch alone.
Rasberry argues that, due to the plastic packaging
surrounding the drugs, the incriminating nature of the object in
his shorts could not have been immediately apparent to Wolf. This
argument has a patina of plausibility, but we need not address it:
the seizure is fully justified on the alternative ground elaborated
by the district court. Consequently, we turn to that alternative
ground.
The district court held that the totality of the
circumstances known to Wolf at the time of the pat-down gave him
probable cause to arrest Rasberry and, thus, allowed him to seize
the softball-sized object incident to Rasberry's arrest. This
holding finds ample support in the record.
It is common ground that a Terry stop can evolve to a
point at which there is probable cause to make an arrest. See
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Terry, 392 U.S. at 25. At that juncture, the officer can search
the suspect for evidence or contraband incident to the arrest. See
id. That is precisely what happened here.
Probable cause is a "fluid concept" that is "not readily,
or even usefully, reduced to a neat set of legal rules." Illinois
v. Gates, 462 U.S. 213, 232 (1983). It "requires only the kind of
fair probability on which reasonable and prudent [people,] not
legal technicians, act." Kaley v. United States, 134 S.Ct. 1090,
1103 (2014) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013))
(internal quotation marks omitted). An objective standard is
employed to determine whether an officer has probable cause to
effect an arrest. See Cox v. Hainey, 391 F.3d 25, 31 (1st Cir.
2004). An inquiring court must examine the events leading up to
the arrest and then determine "whether these historical facts,
viewed from the standpoint of a reasonable police officer, amount
to probable cause." Ornelas v. United States, 517 U.S. 690, 696
(1996).
Here, the totality of the circumstances militates
strongly in favor of a finding that probable cause existed to
arrest Rasberry. The officers already had recovered some drugs
from Rasberry's accomplice (the renter of the motel room). She
had told them that Rasberry was in the room and was in possession
of additional drugs. When the officers reached the motel, they
found Rasberry in the designated room — confirming to that extent
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the reliability of the accomplice's account. See Gates, 462 U.S.
at 245 (explaining that tip containing information subsequently
found to be accurate can be a factor giving rise to probable
cause). In the motel room, the officers' search revealed
accoutrements of the drug trade (specifically, plastic baggies,
needles, and a digital scale), giving rise to a plausible inference
that a drug-distribution operation was afoot. See, e.g., United
States v. Fermin, 771 F.3d 71, 79 n.6 (1st Cir. 2014).
The officers had been told by Rasberry's accomplice that
there were drugs in the motel room and, after scouring the room in
vain, the only place that had not yet been searched was Rasberry's
person. While patting Rasberry down, Wolf came across a suspicious
object in Rasberry's undershorts — an object that Wolf reasonably
suspected contained drugs. This suspicion was heightened by Wolf's
knowledge that drug dealers frequently conceal drugs in their
undergarments. See United States v. Cofield, 391 F.3d 334, 337
n.2 (1st Cir. 2004) (discussing how suspects often hide drugs in
their underwear). When Rasberry was asked directly about the
softball-sized object, he responded with an obvious lie. A
suspect's blatant prevarication in response to an officer's
queries can support an inference of probable cause. See, e.g.,
United States v. Brown, 500 F.3d 48, 57 (1st Cir. 2007).
To say more would be to paint the lily. Here, a host of
factors pointed unerringly to a reasonable inference that Rasberry
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was hiding drugs in his skivvies. In the circumstances at hand,
the district court did not err in finding that Wolf had probable
cause to arrest Rasberry and to seize the softball-sized object
incident to his arrest.
D. The Intrusiveness Claim.
Rasberry makes a final argument: that the search of his
undershorts was overly invasive and degrading and, thus, abridged
his Fourth Amendment rights. Because this argument is raised for
the first time on appeal, our review is for plain error. See
United States v. Madsen, 809 F.3d 712, 717 (1st Cir. 2016). Plain
error is plainly absent here.
The reasonableness of an invasive search depends on
whether the totality of the circumstances justifies the degree of
the intrusion. See Spencer v. Roche, 659 F.3d 142, 146 (1st Cir.
2011); Cofield, 391 F.3d at 336. To justify a search of a
particularly intimate area, an officer must, at a minimum, have
reasonable suspicion that the person detained is hiding contraband
there. See United States v. Barnes, 506 F.3d 58, 62 (1st Cir.
2007). Wolf — having just encountered a suspicious object near
Rasberry's groin — had excellent reason to think that Rasberry had
contraband hidden in his undershorts.
Although extracting the softball-sized object was, in
Wolf's phrase, "awkward," there is no evidence that the extraction
was conducted in a needlessly degrading or humiliating fashion.
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Cf. Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (finding strip
search of female detainee in front of male officers
unconstitutional). Wolf and Rasberry were of the same gender and
Wolf withdrew the softball-sized object in the privacy of a motel
room, allowing Rasberry to remain clothed as he did so. It was
Rasberry's decision to hide contraband in such an intimate
location, and the seizure was performed in a reasonable manner.
No more was exigible to keep Rasberry's Fourth Amendment rights
inviolate.

Outcome: We need go no further. Rasberry's appeal yields only
bitter fruit and, therefore, the judgment of the district court is
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: