United States v. Gates

• Decision Date: 01 March 2013
• Docket Number: No. 10–2163.,10–2163.
• Citation: 709 F.3d 58
• Parties: UNITED STATES of America, Appellee, v. Frederick GATES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

709 F.3d 58

UNITED STATES of America, Appellee,

v.Frederick GATES, Defendant, Appellant.

No. 10–2163.

United States Court of Appeals, First Circuit.

March 1, 2013.

Todd A. Bussert, with whom Frost Bussert, LLC was on brief, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Appalled by his conviction and sentence on drug-trafficking charges, defendant-appellant Frederick Gates seeks to wipe the slate clean. His appeal presents, among other issues, important questions of first impression in this circuit about the operation of the Speedy Trial Act (STA), 18 U.S.C. § 3161.

The defendant's arguments are forcefully advanced but, when their reverberations subside, they prove to be untenable. Accordingly, we affirm the judgment below.

I. TRAVEL OF THE CASE

On February 27, 2008, a federal grand jury sitting in the District of Maine indicted the defendant for conspiring to distribute cocaine base (crack cocaine) and for the substantive offense of possessing the drug with the intent to distribute it. See21 U.S.C. §§ 841(a)(1), 846. In a superseding indictment, the grand jury expanded the temporal scope of the charged conspiracy.

The defendant initially maintained his innocence. Through a succession of court-appointed attorneys, he filed a salmagundi of pretrial motions, including motions to suppress certain evidence and to dismiss the indictment on speedy trial grounds. When all of these motions came to naught, see United States v. Gates (Gates I), No. 08–42–P–H, 2008 WL 5382285 (D.Me. Dec. 19, 2008) (motions to suppress); United States v. Gates (Gates II), 650 F.Supp.2d 81 (D.Me.2009) (motion to dismiss), the case went to trial.

On the second trial day, the defendant shifted direction and entered a conditional guilty plea. Fed.R.Crim.P. 11(a)(2). The tendered plea reserved the right to contest the district court's earlier denials of his motions to suppress and to dismiss. The district court accepted the conditional plea and ordered the preparation of a presentence investigation report (PSI Report).

The probation department issued a draft of the PSI Report on November 12, 2009. At that juncture, the defendant had a change of heart: he moved pro se to withdraw his guilty plea and requested a new (court-appointed) attorney. The district court appointed replacement counsel—the defendant's fifth attorney—who filed an amended motion for withdrawal of the plea. The government opposed the motion and, in due course, the court rejected the defendant's importunings. See United States v. Gates (Gates III), 698 F.Supp.2d 212, 219 (D.Me.2010). The court sentenced the defendant to serve 240 months in prison. This timely appeal ensued. In this court, the defendant is represented by yet another court-appointed attorney (his sixth).

II. ANALYSIS

The defendant's asseverational array has four main elements. We address them sequentially.

A. Suppression.

Prior to trial, the defendant moved to suppress the fruits of both a motor vehicle stop and a residential search. The district court referred these motions to a magistrate judge. See28 U.S.C. § 636(b)(1)(B); Fed.R.Crim.P. 59(b)(1). Following an evidentiary hearing, the magistrate judge recommended that both motions be denied. See Gates I, 2008 WL 5382285, at *13. The district court, over the defendant's objections, adopted the recommended decision.¹ On appeal, the defendant assigns error to this ruling.

In reviewing a district court's denial of a motion to suppress, we assess factual findings for clear error. United States v. Fagan, 577 F.3d 10, 12 (1st Cir.2009). This deferential standard requires us to “proceed circumspectly and with regard for the district court's superior vantage point.” United States v. Espinoza, 490 F.3d 41, 46 (1st Cir.2007). Conversely, the district court's answers to abstract questions of law engender de novo review. See Fagan, 577 F.3d at 12.

1. The Motor Vehicle Stop. Consistent with the standard of review, we recount the facts relevant to the motor vehicle stop as supportably found by the district court. At around 11:00 a.m. on September 19, 2007, the defendant was operating a Chevrolet Tahoe with Maine license tags on Interstate Route 85 in Gaston County, North Carolina. A patrol officer, William Hall, clocked the defendant's vehicle at a speed of 77 miles per hour (12 miles above the posted limit).

Hall initiated a traffic stop. He approached the Tahoe and asked the defendant, who appeared nervous, for his driver's license. He then inquired about the defendant's destination.

Hall called for backup and for a canine unit. After reinforcements arrived, another officer, Brent Roberts, approached the passenger; in the process, he observed a white object behind the driver's seat that he thought might be a set of digital scales and a substance that appeared to be marijuana residue in the center console.

Officer Hall ran a computerized criminal history search, which revealed that the defendant had a significant record. At approximately 11:21 a.m., Hall instructed the defendant to step out of the vehicle. When the defendant complied, Hall issued him a warning for the speeding violation. Hall indicated that he would “like to run [his] canine around [the] car,” and the defendant consented. Hall also conducted a pat-down search, which turned up a large sum of cash and several cell phones.

The dog subsequently “alerted” to the front passenger side of the vehicle, thus indicating the presence of contraband. When this occurred, the defendant's passenger admitted to having smoked marijuana and produced a small bag of it.

The defendant says that the avails of this vehicle stop ought to have been suppressed. We do not agree.

Judicial review of investigatory stops, commonly known as Terry stops, see Terry v. Ohio, 392 U.S. 1, 19–21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), demands a two-tiered evaluation.² First, the stop must be justified at its inception. See United States v. Ruidíaz, 529 F.3d 25, 28 (1st Cir.2008). Second, actions undertaken during the stop must be reasonably related in scope to the stop itself “unless the police have a basis for expanding their investigation.” United States v. Henderson, 463 F.3d 27, 45 (1st Cir.2006).

In the Terry milieu, reasonable suspicion is the touchstone for an initial stop. Ruidíaz, 529 F.3d at 28. While reasonable suspicion is a fluid concept that lacks precise definition, it is common ground that “reasonable suspicion requires more than a mere hunch but less than probable cause.” Id. at 29. An inquiring court must examine the totality of the circumstances “to see whether the detaining officer ha[d] a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted).

At the second tier, the court must scrutinize “whether the officer's subsequentactions were fairly responsive to the emerging tableau.” United States v. Chhien, 266 F.3d 1, 6 (1st Cir.2001). Although such actions ordinarily must bear some relation to the purpose of the initial stop, an officer “may shift his focus and increase the scope of his investigation by degrees if his suspicions mount during the course of the detention.” Id.

In the case at hand, the defendant does not challenge the officers' actions during the vehicle stop. Instead, he confines his attack to the first tier of the Terry framework and asserts that Hall did not have reasonable suspicion to make the initial stop. The alleged speeding, he says, was merely a pretext. This assertion need not detain us.

In his motion to suppress, the defendant explicitly “concede[d] that based upon his speed Officer Hall had a reasonable articulable suspicion to effect a traffic stop of his vehicle.” This concession corresponds to the officer's account and no more is exigible to render the stop legitimate. See Whren v. United States, 517 U.S. 806, 812–13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (holding that the appropriate Fourth Amendment test is one of objective reasonableness); Ruidíaz, 529 F.3d at 29 (same). That ends this aspect of the matter: a party cannot concede an issue in the district court and later, on appeal, attempt to repudiate that concession and resurrect the issue. To hold otherwise would be to allow a litigant to lead a trial court down a primrose path and later, on appeal, profit from the invited error. We will not sanction such tactics. Cf. Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir.1984) (warning against permitting the use of “agreeable acquiescence to perceivable error as a weapon of appellate advocacy”).

2. The Residential Search. We turn next to the defendant's motion to suppress evidence seized during a search of his home in Maine. To set the stage, we rehearse the relevant facts as supportably found by the district court.

On August 29, 2007, local authorities arrested the defendant in Maine on a charge of operating a motor vehicle under the influence of intoxicants. A state magistrate released him on bail conditions, which provided among other things that he would not use or possess any alcoholic beverages or illegal drugs and that he would “submit to searches of [his] person, vehicle and residence ... upon articulable suspicion.”

The defendant was arrested again some six weeks later—this time on charges of disorderly conduct and resisting arrest. He was again released on bail, subject to the alcohol and drug conditions described above. His new bail conditions, however, contained a significant change: they stipulated that he would “submit to searches of [his] person, vehicle and residence ... at any time without articulable suspicion or probable cause” (emphasis supplied).

On November 13, 2007, these bail conditions remained in effect. On that date, police officers in Lewiston,...