United States v. Harrington

56 F.4th 195

UNITED STATES of America, Appellee,

v.Francis HARRINGTON, Defendant, Appellant.

No. 22-1067

United States Court of Appeals, First Circuit.

December 28, 2022

Mary June Ciresi for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.

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

GELPÍ, Circuit Judge.

Following an anonymous tip alerting the Manchester Police Department of two men passed out in a vehicle, Francis Harrington ("Harrington"), the passenger, was stopped, pat-frisked, and arrested after the discovery of fentanyl in his waistband. A federal grand jury in the District of New Hampshire returned an indictment charging him with one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vi). Harrington filed a motion to suppress the fentanyl, arguing that it was discovered during an unconstitutional stop and search. The district court held a suppression hearing and denied Harrington's motion. Harrington filed for reconsideration, and a second hearing was held, but the motion was again denied. Harrington pled guilty to the indictment but reserved his right to appeal the district court's denial of his motion to suppress. He now appeals. We affirm the denial.

I. BACKGROUND

A. Facts

When "reviewing the denial of a motion to suppress, ‘[w]e recount the relevant facts as the trial court found them, consistent with record support,’ " United States v. Romain, 393 F.3d 63, 66 (1st Cir. 2004) (alteration in original) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003) ), and "[w]e view the facts in the light most favorable to the district court's ruling," United States v. Soares, 521 F.3d 117, 118 (1st Cir. 2008) (quoting United States v. Kimball, 25 F.3d 1, 3 (1st Cir. 1994) ).

On the morning of August 22, 2019, an anonymous caller reported witnessing two males exit and return to a vehicle (a Chevrolet Impala) parked across the street from the Red Arrow Diner at 61 Lowell Street, Manchester, New Hampshire, and proceed to pass out in the vehicle. The area was commercial with a few apartments nearby and recognized as a high-volume area for crime and drug activity.

In response to the anonymous tip, Officer James Pittman ("Officer Pittman"), who had been working for the Manchester Police Department in New Hampshire for six years, arrived on the scene, parked behind the vehicle, approached the driver's side, and saw the driver sleeping or passed out with his head down and his chin resting on his chest. About thirty seconds later, medical personnel arrived. Officer Pittman woke up the driver but did not recall whether he did so by speaking to him or knocking on the window. When the driver awoke, he seemed lethargic with bloodshot eyes. Officer Pittman asked him to step out of the vehicle and realized he had pinpoint pupils that looked "a little bit glassy." Officer Pittman inferred that the driver was under the influence of opioids or other narcotics. He conducted a pat-frisk and spoke to the driver, who denied illegal activity and impairment.

While speaking to the driver, Officer Pittman noted that medical personnel had engaged the passenger -- Harrington -- while he was still sitting in the vehicle. As Officer Pittman walked over, he observed one of the medical professionals gesture that Harrington was not acting normal. Officer Pittman noted that Harrington appeared lethargic, his eyes were half shut at one point, and he was swaying from side to side. When Officer Pittman asked him to step out of the vehicle, Harrington reached around inside the Chevrolet Impala, including reaching between the seats near the center console area. Once Harrington finally exited, he continued to appear lethargic and moved very slowly.

Once Harrington was out of the vehicle, Officer Pittman requested that he place his hands on top of his head. Harrington placed one hand over his head but moved the other toward his pocket. Officer Pittman immediately grabbed his noncompliant arm and placed it on top of his head to prevent him from reaching into his pocket and began a pat-frisk. As Officer Pittman ran his hand over the front of Harrington's waistband, he felt a large bulge that he believed to be a weapon. He asked Harrington to identify the object, and Harrington stated, "drugs." Officer Pittman handcuffed Harrington and removed the bulge, which appeared to be a large bag containing four brown baggies and a brownish-tan substance. Based on his training and experience, Officer Pittman believed the substance to be either fentanyl or heroin. Harrington was placed under arrest. The state lab later confirmed that the substance consisted of both fentanyl and heroin.

B. Procedural History

Harrington moved to suppress the narcotics. The District Court for the District of New Hampshire held two hearings to determine whether the evidence should be suppressed -- one on August 25, 2020, and a reconsideration hearing on April 22, 2021 -- but denied Harrington's motion both times. Ultimately, the district court concluded that the investigatory stop did not violate Harrington's Fourth Amendment rights; that Officer Pittman had reasonable suspicion of criminal activity to extend Harrington's seizure after he and the driver regained consciousness; that Officer Pittman's decision to order Harrington out of the vehicle was justified; and that Officer Pittman had reasonable suspicion that Harrington could have been armed with a weapon to justify a Terry frisk. United States v. Harrington, 557 F. Supp. 3d 323, 326-27 (D.N.H. 2021). On May 18, 2021, Harrington pled guilty to the federal indictment and reserved his right to appeal the denial of his motion to suppress.

C. Standard of Review

When reviewing a district court's denial of a motion to suppress, we assess factual findings for clear error and evaluate legal issues de novo. United States v. Tiru-Plaza, 766 F.3d 111, 114–15 (1st Cir. 2014). "In assessing these legal conclusions, however, we also give appropriate weight to the inferences drawn by the district court and the on-scene officers, recognizing that they possess the advantage of immediacy and familiarity with the witnesses and events." Id. at 115. Moreover, we will uphold a denial of a motion to suppress "provided that any reasonable view of the evidence supports the decision." United States v. Ferreras, 192 F.3d 5, 10 (1st Cir. 1999). We note that "when two or more legitimate interpretations of the evidence exist, the factfinder's choice between them cannot be deemed clearly erroneous," United States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007), and that "we are not wed to the district court's reasoning but, rather, may affirm its suppression rulings on any basis apparent in the record," United States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014).

II. DISCUSSION

On appeal, Harrington makes three challenges to the district court's denial of his motion. First, he argues that "[t]he initial stop was an unlawful detention." Second, he argues that Officer Pittman impermissibly prolonged the duration of the stop. Finally, he argues that Officer Pittman did not have reasonable suspicion to believe he was armed and dangerous, which Officer Pittman needed, to conduct a pat-frisk. To assess these challenges, we must evaluate whether reasonable suspicion existed to support Officer Pittman's conduct at each juncture of the encounter. We assess each in turn. We note that neither party challenges the district court's findings of fact and, accordingly, we find no clear error.

A. The Initial Encounter

Although the car was already stopped and parked, both Harrington and the government have argued that this encounter should be evaluated under the standards established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and we accept the agreed-upon mode of analysis.

First, Harrington argues that the initial stop violated the Fourth Amendment, contending that as soon as Officer Pittman observed that the "two men were conscious," "his wellness check should have ceased" because "[t]he act of sitting or sleeping inside a car is not an illegal act." Moreover, he claims that for the investigation to continue, Officer Pittman "needed reasonable suspicion that criminal activity was afoot," which he did not have. We disagree.

The Fourth Amendment protects against "unreasonable searches and seizures." U.S. Const. amend. IV. Evidence obtained in violation of the Fourth Amendment is subject to exclusion. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) (adopting exclusionary rule); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying exclusionary rule to the states); United States v. Camacho, 661 F.3d 718, 724 (1st Cir. 2011). "The protections of the Fourth Amendment apply not only to traditional arrests, but also to those brief investigatory stops generally known as Terry stops." Camacho, 661 F.3d at 724. A Terry stop is a brief detention that permits a police officer to, "in appropriate circumstances and in an appropriate manner[,] approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry, 392 U.S. at 22, 88 S.Ct. 1868.

For a Terry stop to comply with the Fourth Amendment, the officer must have "reasonable suspicion that the person is or has been engaged in criminal activity." United States v. Brake, 666 F.3d 800, 804 (1st Cir. 2011). This assessment is based on the "totality of the circumstances," which requires that the detaining officer have 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) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). That is, while the standard is less demanding than that of probable...