549 F.3d 5 (1st Cir. 2008), 07-2776, United States v. Parker

Docket Nº:07-2776.
Citation:549 F.3d 5
Party Name:UNITED STATES of America, Appellee, v. Quenta PARKER, Defendant, Appellant.
Case Date:November 26, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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549 F.3d 5 (1st Cir. 2008)

UNITED STATES of America, Appellee,


Quenta PARKER, Defendant, Appellant.

No. 07-2776.

United States Court of Appeals, First Circuit.

November 26, 2008

Heard Oct. 8, 2008.

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William Gray Schaffer, by appointment of the court, for appellant.

Aixa Maldonado-Quiñones, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief for appellee.

Before TORRUELLA, BOUDIN and HOWARD, Circuit Judges.

BOUDIN, Circuit Judge.

On February 16, 2005, around eight p.m. Sergeant Duval of the Somersworth, New Hampshire, Police Department responded to a 911 call from the home of Carrie Davis. Davis told Duval that she had been threatened by three men-two black, one white-who had arrived at the apartment looking for her boyfriend, Richard Post. When told that Post was not there, one of the black males, known to Davis as “ H," said that she knew what they wanted and exposed a black firearm in his waistband. The white male, whom she knew as “ Jose," was holding a tool with a blade which he

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smacked on his hand. Davis knew the other black male only as “ Q."

The three men, Post's sister told Duval, were looking for Post because he had been dealing drugs, including crack cocaine, and had “ ripped off" his suppliers. Post's sister also gave Duval the license plate number of the pickup truck the three men were using, and Duval put out an alert for the truck. Shortly thereafter, Officer Gould of the Dover, New Hampshire, Police Department located the truck, still warm, at a Dover motel just over the line from Somersworth. Duval and another Somersworth officer joined Gould and another Dover officer at the motel.

The night clerk told the officers that three men matching Davis' description had entered the motel shortly before and had gone to Room 419, rented for cash by Kimberly Holland. The clerk also said that Holland had previously rented rooms at the motel and that the clerk suspected the group members of drug dealing. Arriving on the fourth floor, the officers smelled marijuana coming from the room. Their knock produced the sound of movement and whispering inside the room, but no answer.

Gould then left to consult with a supervisor and Duval knocked again; a black male, Anthony Burnett, opened the door. The other men in the room were later identified as Quenta Parker, a black male, and Juan Feliciano, a light-skinned Hispanic. Duval questioned the men while waiting for Gould to return; this questioning lasted approximately ten to fifteen minutes. Asked by Duval about the incident at Davis' home, Burnett said that they had been visiting a friend; the address he gave was quite near Davis' house. In response to questions about the smell of marijuana, Feliciano admitted that he had “ smoked a joint, but it's all gone." All refused the police request for consent to search the room.

Gould returned and one of the officers asked all four occupants (the men and Holland) for identification and to step outside the room. Gould then spoke privately to Holland, viewing her as having authority to consent to a search. This discussion lasted approximately ten minutes, during which Holland admitted to smoking marijuana but asked to consult with her boyfriend, “ Q" (Parker). Parker then allegedly admitted that they had smoked marijuana and that there was still some inside the room. But he told Holland not to consent to a search, and she then denied consent.

The occupants were held at the motel until around midnight when a search warrant was finally secured; this was roughly three to three and a half hours after the decision was made to seek the warrant. A search of the room turned up a small safe-later found marked with Parker's fingerprints-containing a black .32 caliber handgun, two loaded magazines, a holster and ammunition pouch, two knives, several pills, $3000 cash, and approximately 550 grams of crack cocaine. More cash ($2750) was found in a leather jacket in the room. Parker and the two other men were then formally arrested.

A federal grand jury indicted Parker for conspiring with Burnett and others to distribute and to possess with intent to distribute crack cocaine, 21 U.S.C. § 846 (2006), for possession with intent to distribute crack cocaine, id. § 841(a)(1), and for possession of a firearm in furtherance of a crime of drug trafficking, 18 U.S.C. § 924(c)(1)(A) (2006). After an evidentiary hearing, Parker's request to suppress the physical evidence was denied. Parker then pled guilty on all counts, reserving his right to appeal from the denial of his suppression

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motion, and was sentenced to 195 months in prison.1

Parker's first claim on appeal is that requiring him to leave the hotel room was a seizure in violation of the Fourth Amendment, “ the ‘ fruits' of which must be suppressed." The district court's findings on the denial of a suppression motion are reviewed for clear error, but its legal determinations are reviewed de novo. United States v. Smith, 423 F.3d 25, 31 n. 4 (1st Cir.2005), cert. denied, 547 U.S. 1149, 126 S.Ct. 2287, 164 L.Ed.2d 817 (2006). Here, asking Parker to step outside the room was not unlawful; nor, had it been unlawful, would the items seized in the room be suppressed as forbidden fruit.

The complication in this case is not the initial knock nor the preliminary inquiries...

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