771 F.3d 71 (1st Cir. 2014), 13-1108, United States v. Fermin

Docket Nº:13-1108
Citation:771 F.3d 71
Opinion Judge:STAHL, Circuit Judge.
Party Name:UNITED STATES, Appellee, v. CHARLES FERMIN, Defendant, Appellant
Attorney:Charles W. Rankin with whom Audrey M. Grace, Kerry A. Haberlin, and Rankin & Sultan were on brief, for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.
Judge Panel:Before Lynch, Chief Judge, Stahl and Barron, Circuit Judges.
Case Date:November 14, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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771 F.3d 71 (1st Cir. 2014)



CHARLES FERMIN, Defendant, Appellant

No. 13-1108

United States Court of Appeals, First Circuit

November 14, 2014

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[Copyrighted Material Omitted]

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Charles W. Rankin with whom Audrey M. Grace, Kerry A. Haberlin, and Rankin & Sultan were on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before Lynch, Chief Judge, Stahl and Barron, Circuit Judges.


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STAHL, Circuit Judge.

After a jury trial, Defendant-Appellant Charles Fermin was convicted of possession with intent to distribute both marijuana and cocaine, and acquitted of possession of a firearm in furtherance of a drug-trafficking offense. On appeal, Fermin contests the denial of his motion to suppress and the sufficiency of the trial evidence, and alleges error in the jury instructions and sentence enhancements imposed. Finding no reversible error, we affirm Fermin's convictions and sentence.

I. Facts & Background

Because Fermin challenges the sufficiency of the evidence on appeal, we set forth the evidence in the light most favorable to the jury verdict. United States v. Clemens, 738 F.3d 1, 3 (1st Cir. 2013).

On January 6, 2012, members of the High Intensity Drug Trafficking Area task force (" HIDTA task force" ), a unit of the Rhode Island State Police, were conducting surveillance near the Providence College campus. Fermin was observed walking down residential Liege Street empty-handed, wearing a garbage bag underneath a red sweatshirt, before disappearing out of sight between two houses, 40 and 48-50 Liege Street. He emerged three to four minutes later rolling a large black suitcase.

Looking around as if to check if anyone was walking behind him, Fermin wheeled the suitcase the same way he had just come and entered a nearby parking lot. He made his way to the far end of the lot, where he placed the suitcase between a Jeep and a cement wall. He then stepped away from the suitcase and began to talk on a cell phone. Between conversations, he slid the suitcase under the Jeep and removed the sweatshirt he was wearing. Several minutes later, Fermin retrieved the suitcase, tied his sweatshirt around the handle, and exited the parking lot with the suitcase in tow.

Police stopped Fermin on the street shortly thereafter and asked to speak with him about the suitcase. Fermin immediately dropped his cargo and said that it was not his. He told police that he had been running at the Providence College track when someone threw the suitcase over the fence.1 Standing next to the suitcase,

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one detective discerned a " strong odor" of marijuana; he unzipped the suitcase and saw that it did in fact contain a large quantity of marijuana. Fermin was arrested and transported to the police barracks.

While being interviewed at the barracks, Fermin reiterated that he happened upon the suitcase while running at the Providence College track, after someone threw it over the fence. Fermin also volunteered to the detective processing him that he and his friend saw someone " dump" the suitcase near the Providence College track; his friend had encouraged him to take the bag, believing there might be money in it. He declined to identify his friend, stating that the friend was " a college white boy and you know how they are." The detective later presented Fermin with surveillance photographs taken earlier that day, both before and after he had retrieved the suitcase, which depicted him walking down the street alone. Fermin became visibly upset and said that he did not want to argue.

Police recovered thirty-three pounds of marijuana from the suitcase, stored in thirty-eight gallon-sized clear plastic bags; 2 thirty-one grams of cocaine; a bottle of powdered caffeine; 3 three digital scales; and a box of plastic bags like the ones filled with marijuana. In addition, the suitcase contained a .357 revolver loaded with six rounds of ammunition inside a rolled-up pair of sweatpants.

A three-count indictment issued against Fermin, charging him with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and possession of a firearm in furtherance of those crimes. Fermin unsuccessfully moved to suppress all evidence seized by law enforcement personnel on January 6, 2012, as well as all statements he made to police that day.

After a three-day trial, Fermin was convicted of the two drug charges but acquitted of the firearm charge.4 Applying sentence enhancements for obstruction of justice and possession of a firearm during the commission of the crimes, the district court sentenced Fermin to forty-one months in prison. This appeal followed.

II. Analysis

A. Motion to suppress

1. Evidence at the motion hearing and district court's ruling

The district court held a hearing on the motion to suppress, at which Fermin and two detectives, Allen and Demers, testified. The detectives' testimony at the hearing concerning their January 6 surveillance of Fermin tracked their eventual trial testimony. However, Detective Allen also gave details, not placed before the jury, of a tip received from a reliable confidential informant two days prior to Fermin's stop. The informant told police that 40 Liege Street was being used as a " stash house" for large amounts of marijuana, approximately 1000 or 1500 pounds, and that the stash was to be relocated soon. Acting on the tip, task force members conducted surveillance of the area on January

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4 and 5. They observed vehicles pulling up in front of 40 Liege Street and one or more people entering the house at a time, leaving a short time later. Such activity, Detective Allen believed, was consistent with narcotics trafficking.

Fermin's account of the ensuing stop on January 6 contradicted that of the detectives. Fermin testified that he was jogging in the area when he found the suitcase next to a recycling bin in someone's backyard. Picking it up and noting its substantial weight, Fermin became curious as to its contents, but did not want to open it while on the potential owner's property. He decided to take the suitcase to the Chad Brown housing project, where " people mind their business," resolving to throw it out there if it contained nothing of value.

According to Fermin, he was wheeling the suitcase down the street when a car sped by and abruptly came to a stop ahead of him. An officer emerged, pointing a gun at him, and commanded him to stop. Fermin immediately let go of the suitcase. Another officer exited a different car, also with her gun drawn; the two converged on Fermin as a third officer approached him with handcuffs. In response to their questioning about the suitcase, Fermin told police that he had just found it in someone's yard and that it did not belong to him.5

Detective Demers testified that he parked on the street next to Fermin and displayed his badge -- but not his gun -- as he exited the vehicle, stating, " State Police. State Police task force. We want to talk to you regarding the suitcase you're carrying." In response, Fermin put his hands up and dropped the suitcase, declaring that it was not his and that he had found it while running at the Providence College track. Immediately thereafter, Detective Allen arrived on the scene and parked his car, with the front of his car facing both Detective Demers and Fermin. Two other officers also arrived and stood behind Fermin.

Detective Allen asked questions of Fermin in what he described as a " conversational" tone of voice; he denied giving any commands or drawing his gun. Allen placed Fermin in handcuffs once marijuana was discovered in the suitcase and transported him to the police barracks.

Crediting the detectives' version of events over Fermin's, the district court ruled that the encounter was a consensual one that did not implicate the Fourth Amendment. Further, the warrantless search of the suitcase was proper, as Fermin had disclaimed ownership of it and thus forfeited a claim of privacy. See United States v. De Los Santos Ferrer, 999 F.2d 7, 9-10 (1st Cir. 1993). The court held in the alternative that, even if the encounter constituted a seizure for Fourth Amendment purposes, police had reasonable suspicion, supported by articulable facts, that criminal activity might have been afoot. The court therefore denied Fermin's motion to suppress.

2. Discussion

" When reviewing a challenge to the district court's denial of a motion to suppress, we view the facts in the light most favorable to the district court's ruling on the motion, and we review the district court's findings of fact and credibility determinations for clear error." United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011) (internal citations and quotation

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marks omitted). However, we review conclusions of law de novo, giving plenary review to the district court's application of law to facts, reasonable-suspicion determinations, and ultimate decision to deny the motion. Id. at 724.

The question whether the encounter at issue was consensual, or instead a seizure within the meaning of the Fourth Amendment, is not free from doubt. The district court found that it was " undisputed that there were . . . at least four, if not five officers present in some formation around [Fermin] in a very short period of time after he was confronted," and that police told Fermin that they wanted to speak with him about the contents of the suitcase. It is not clear that a reasonable person, surrounded by five police officers, would believe that he was free to leave. See California v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Indeed, Fermin did not leave but...

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