United States v. Orth

Decision Date13 October 2017
Docket NumberNo. 16-1436.,16-1436.
Citation873 F.3d 349
Parties UNITED STATES of America, Appellee, v. Robert ORTH, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Jaye L. Rancourt and Brennan Lenehan Iacopino & Hickey, Manchester, NH, on brief for appellant.

Seth R. Aframe, Assistant United States Attorney, and Emily Gray Rice, United States Attorney, on brief for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant Robert Orth ("Orth" or "Appellant") appeals the district court's denial of his motion to suppress drugs, a digital scale, and a firearm obtained following a traffic stop of the vehicle in which he was a passenger. After careful consideration, we affirm.

I. Background and Procedural History

"[W]e view the facts in the light most favorable to the district court's ruling on the motion," and review its "findings of fact and credibility determinations for clear error." United States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016) (quoting United States v. Fermin, 771 F.3d 71, 76 (1st Cir. 2014) ). At the suppression hearing, Officer Dennis Lee ("Officer Lee") of the Nashua Police Department testified that on May 29, 2014, at just before 10:00 p.m., he observed a vehicle fail to stop at a stop sign. He followed the vehicle and observed it straddle the double yellow line, activate its left turn signal, stop in the middle of the roadway, and then turn on its right turn signal and veer to the right side of the road. Officer Lee subsequently initiated a traffic stop.

Officer Lee testified that the area in which the stop occurred had a reputation for criminal activity, although he did not provide any further specifications. He further testified that he had a suspicion that the driver of the vehicle may have been intoxicated. Officer Lee pulled the vehicle over and parked his cruiser behind it. Before approaching, Officer Lee shined his spotlight on the car and noticed two of the occupants in the car turn to look directly at him with a "deer-in-the-headlights look," which he described as a look of nervousness and surprise beyond what was normal. As he approached the vehicle, he observed that there were a total of three occupants. He later determined that Dustin Adams ("Adams") was the driver, the appellant, Orth, was the front passenger, and Michael Ashford ("Ashford") was the rear passenger. Officer Lee asked Adams for his license and registration. Adams provided his license but did not provide his registration. When Officer Lee asked Adams to check the glove compartment of the vehicle for his registration, Adams refused to do so.

While speaking to Adams, Officer Lee noticed a "large black cylinder item" resting in between Orth's leg and the vehicle's center console. Concerned that it could be a weapon, Officer Lee asked Adams to identify the object. Adams did not answer Officer Lee's question. After Officer Lee repeated the question, Orth "became noticeably aggressive ... verbally" towards Officer Lee, saying "It's an F-ing flashlight" as he picked the object up to reveal that it was a large flashlight. Because of the number of men in the vehicle, Orth's aggressive behavior, and Officer Lee's ongoing concern that the flashlight could be used as a weapon, he requested backup.

After requesting backup, Officer Lee asked Adams to step out of the vehicle. Officer Lee ordered Orth and the rear passenger, Ashford, to "place their hands where [he] would be able to see them," specifically ordering Orth to put his hands on the dashboard. Ashford complied, but Orth did not and began shouting profanities. After Officer Lee's repeated instructions, Orth finally complied. Officer Lee asked Adams if he was in possession of any weapons, to which Adams replied that he was not. Officer Lee pat-frisked Adams and discovered a large utility knife in his pocket that Adams stated was for construction work. While Officer Lee was pat-frisking Adams, Orth continued to protest. At one point, Orth took his hands off of the dashboard and made furtive movements as he reached towards the floorboard of the vehicle. Officer Lee yelled for Orth to place his hands back on the dashboard, which Orth reluctantly did. At this time, a second officer arrived on the scene. Officer Lee then directed Ashford to exit the vehicle and pat-frisked him, which did not reveal any weapons. Orth continued to verbally protest.

Finally, Officer Lee approached the front passenger door and ordered Orth out of the vehicle, after which Orth recommenced his protests. Officer Lee testified that he observed "sweat beading off of [Orth's] forehead," which he found odd because it was a cool May night. Officer Lee pat-frisked Orth and did not discover any weapons. After pat-frisking Orth, Officer Lee instructed Orth to stand away from the passenger door so that Officer Lee could search the vehicle, "to ensure that there [were] no weapons within his reach." Orth stepped towards Officer Lee and stated that the officer could not search the vehicle. As Officer Lee approached the vehicle door, Orth tried to close the door on him. The officer again instructed Orth to step back and approached the car door, and again Orth tried to close it on him. Officer Lee told Orth that he was going to place him in handcuffs for safety, but Orth resisted and pushed Officer Lee in the chest. At this time, Officer Lee informed Orth that he was under arrest and attempted to place him in handcuffs. Orth resisted. While both officers attempted to restrain him, Orth yelled to his fellow passengers to "get the shit, get the shit, run and hide it." Adams reached towards the floorboard of the front passenger seat where Orth had been sitting, grabbed a jacket, and began to flee. Officer Lee pursued Adams while the second officer stayed behind and secured Orth. As he fled, Adams tripped and dropped the jacket, and then discarded it in the middle of the roadway. Upon picking up the jacket, Officer Lee could tell by the weight that there was something inside of it, which he suspected to be a gun. Upon later examination, he found a loaded pistol, a digital scale, and 248 grams of heroin.

Orth was charged with possession of heroin with intent to distribute, in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(B)(i) ; possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) ; and possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Orth moved to suppress the evidence, arguing that it was obtained through an illegal search and pat-frisk. After an evidentiary hearing, the judge denied the motion, finding that the pat-frisk was warranted. Orth pled guilty to all three counts but reserved the right to appeal the denial of the motion to suppress. He was sentenced to 120 months of imprisonment.

On appeal, Orth contends that the district court erred by denying his motion to suppress as Officer Lee lacked reasonable suspicion to warrant pat-frisks of the occupants of the vehicle, and therefore unlawfully extended the traffic stop beyond the scope of its initial purpose. Orth also argues that Officer Lee lacked reasonable suspicion to search the interior of the vehicle, further unlawfully extending the traffic stop, in violation of the Fourth Amendment. Finally, he argues that Adams's removal of the jacket from the vehicle did not supersede the Fourth Amendment violations. To support his argument, Orth specifies four factors that Officer Lee testified about and argues that, in the totality of the circumstances, they were insufficient to justify the removal and pat-frisk of the three men.

II. Discussion
A. Standard of Review

We review de novo the district court's ultimate legal decision to grant or deny a motion to suppress, including its application of the law to the facts and its probable cause and reasonable suspicion determinations. Fields, 823 F.3d at 25 ("When reviewing a challenge to the district court's denial of a motion to suppress ... [w]e review conclusions of law ... de novo.") (internal citations omitted); see United States v. Crespo-Ríos, 645 F.3d 37, 41 (1st Cir. 2011).

The boundaries of an investigatory stop and frisk were first delineated in the Supreme Court's landmark decision in Terry v. Ohio :

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that persons with whom he is dealing may be armed and presently dangerous ... and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Our review of a Terry pat-frisk requires a two-part analysis: first, whether the initial stop was justified; and second, whether the police had a legal basis to justify an investigation beyond the scope of the reason for the stop itself. United States v. Mouscardy, 722 F.3d 68, 73 (1st Cir. 2013) (citations omitted). A stop's validity is, by itself, insufficient; "the key is whether, under the circumstances, ‘the officer is justified in believing that the person is armed and dangerous to the officer or others.’ " United States v. Cardona-Vicente, 817 F.3d 823, 827 (1st Cir. 2016) (quoting United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004) ). The crux of the analysis relies on the reasonableness of the officer's actions, in light of the "totality of the circumstances," which must "provide[ ] a particularized, objective basis for the officers' suspicion that [the defendant] was dangerous and posed a threat to their safety." United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005).

Both parties agree, as did the district court, that the initial stop was lawful....

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