United States v. Rasberry

• Decision Date: 14 February 2018
• Docket Number: No. 16-2465,16-2465
• Parties: UNITED STATES of America, Appellee, v. Todd RASBERRY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

882 F.3d 241

UNITED STATES of America, Appellee,

v.Todd RASBERRY, Defendant, Appellant.

No. 16-2465

United States Court of Appeals, First Circuit.

February 14, 2018

Joshua L. Gordon, Concord, NH, for appellant.

Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Lynch, Circuit Judge, Souter,^* Associate Justice, and Selya, Circuit Judge.

SELYA, Circuit Judge.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 113 S.Ct. 2130, 124 L.Ed.2d 334 (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 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 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 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), 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, 116 S.Ct. 1657, 134 L.Ed.2d 911 (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 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, 88 S.Ct. 1868. 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, 88 S.Ct. 1868 ). 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, 105 S.Ct. 1643, 84 L.Ed.2d 705 (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 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...