United States Court of Appeals For the First Circuit
No. 22-1067
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCIS HARRINGTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
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.
December 28, 2022 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
- 2 - 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.
- 3 - 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
- 4 - 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,
- 5 - 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
- 6 - 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 (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 (1914) (adopting exclusionary
rule); Mapp v. Ohio, 367 U.S. 643 (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
- 7 - 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.
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 (2002) (quoting United States v. Cortez, 449 U.S. 411,
417-18 (1981)). That is, while the standard is less demanding
than that of probable cause, "the officer nonetheless must possess
(and be able to articulate) more than a hunch, an intuition, or a
desultory inkling of possible criminal activity." Romain, 393
F.3d at 71 (citing Terry, 392 U.S. at 27). "[T]he officer's
subjective motives do not enter into the decisional calculus."
Id. at 74 (citing Whren v. United States, 517 U.S. 806, 812
(1996)). Instead, this objective standard asks courts to "focus
not on what the officer himself believed but, rather, on what a
reasonable officer in his position would have thought." Espinoza,
- 8 - 490 F.3d at 47 (citing Romain, 393 F.3d at 74). Nevertheless,
"[t]his process allows officers to draw on their own experience
and specialized training to make inferences from and deductions
about the cumulative information available to them that 'might
well elude an untrained person.'" Arvizu, 534 U.S. at 273 (quoting
Cortez, 449 U.S. at 418).
With these principles in mind, we ask whether given the
totality of the circumstances, a reasonable officer in Officer
Pittman's position would have had reasonable suspicion -- that is,
a particularized and objective basis grounded in specific and
articulable facts -- that Harrington was involved in criminal
activity. In other words, whether a reasonable officer would
possess more than a mere "hunch," more than a "desultory inkling,"
that crime was afoot. Romain, 393 F.3d at 71. We agree with the
district court's conclusion that an officer would.
Officer Pittman had more than a "hunch" that criminal
activity was taking place given the totality of the circumstances.
Using and possessing illegal substances constitute criminal
activity. N.H. Rev. Stat. Ann. § 318-B:2 (West 2022); 21 U.S.C.
§ 844. Officer Pittman was alerted via a phone call that two men
were passed out at 8:30 a.m. on a weekday morning in a parked
vehicle; observed two men passed out or sleeping in the vehicle
identified in the phone call at an unusual time; knew that the
vehicle was parked in a high-crime area known for illegal drug
- 9 - use; observed that the driver appeared lethargic and had bloodshot,
glassy, pinpoint eyes; and noted that there was no smell of alcohol
or marijuana, indicating that such behavior could be attributed to
illegal drug use rather than a legal substance.
Taken together, these facts indicate more than a mere
"inkling," Romain, 393 F.3d at 71, that criminal activity was
afoot, given the unusual time of day for a nap, the peculiarity of
individuals napping on a weekday, the reality that the area was
known for high drug use, and the obvious signs of drug impairment.
Thus, we would be hard-pressed to conclude that a reasonable
officer in Officer Pittman's position would not suspect illegal
drug use in this context.
While Harrington argues that sleeping may not, on its
own, give rise to reasonable suspicion, "our task is not to perform
a 'divide-and-conquer analysis'" but "to look at the totality of
the circumstances." United States v. Cruz-Rivera, 14 F.4th 32, 45
(1st Cir. 2021) (quoting Arvizu, 534 U.S. at 274). "[A] fact that
is innocuous in itself may in combination with other innocuous
facts take on added significance." United States v. Ruidíaz, 529
F.3d 25, 30 (1st Cir. 2008); see also Illinois v. Wardlow, 528
U.S. 119, 125 (2000) (explaining that a Terry stop may be
permissible even if "the conduct justifying the stop was ambiguous
and susceptible of an innocent explanation"). Taken together with
- 10 - the other facts described above, Harrington's conduct provided
reasonable suspicion to justify the stop.
B. The Length of the Stop
Harrington next argues that the stop was unlawfully
prolonged, and that Officer Pittman had no basis to question him
upon failing to find weapons on the driver. We disagree.
While it is true that even a lawful stop "can become
unlawful" if it is unnecessarily lengthy, Illinois v. Caballes,
543 U.S. 405, 407 (2005), "there is no bright-line rule" to assess
the duration of a stop, Tiru-Plaza, 766 F.3d at 117 (citing United
States v. Pontoo, 666 F.3d 20, 30 (1st Cir. 2011)). Instead, the
length of a stop is determined by the seizure's mission. United
States v. Dion, 859 F.3d 114, 123-24 (1st Cir. 2017). We have
recognized that "the police are in need of an escalating set of
flexible responses, graduated in relation to the amount of
information they possess." Id. at 125 (quoting Terry, 392 U.S. at
10).
Here, the district court properly concluded that
"Officer Pittman was allowed to check on both the driver and
passenger" before concluding the stop. Harrington, 557 F. Supp.
3d at 331. Officer Pittman's mission was to determine whether the
occupants -- not occupant -- were possibly impaired or under the
influence of illegal drugs, a concern which did not dissipate when
both occupants awoke. Id. As the district court stated, using
- 11 - and possessing illegal substances are crimes. 318-B:2; 21 U.S.C.
§ 844. After Officer Pittman investigated the driver, it only
logically followed that he assess whether the other occupant -
- Harrington -- was impaired.
Harrington argues that Officer Pittman lacked reasonable
suspicion to investigate him both because the search of the driver
did not confirm that the driver was engaged in illegal drug use,
and because the frisk of the driver did not uncover any weapons.
As to the former argument, reasonable suspicion does not require
absolute certainty of illegal activity. See, e.g., Wardlow, 528
U.S. at 125. Officer Pittman noted that the driver was lethargic
and had pinpoint, glassy eyes. That observation, if anything,
added to the grounds for reasonable suspicion discussed above; it
certainly did not diminish them. As to the latter argument, the
fact that the driver did not possess any weapons has little bearing
on whether a reasonable officer would suspect that Harrington was
engaged in distinct criminal offenses involving drug use or
possession.
C. The Removal from the Vehicle and Pat-Frisk
First, Harrington argues that Officer Pittman violated
the Fourth Amendment by ordering him to exit the vehicle because
Officer Pittman lacked reasonable suspicion, which is required to
order someone out of a vehicle. We disagree. Here, the relevant
moment for assessing whether reasonable suspicion existed is
- 12 - immediately before Officer Pittman asked Harrington to step out of
the vehicle, but Officer Pittman had reasonable suspicion at this
juncture, as outlined supra. In fact, Officer Pittman had
reasonable suspicion that crime was afoot even before this moment
because he already had reasonable suspicion when he turned his
attention from the driver to Harrington. Officer Pittman's
subsequent interaction with Harrington (wherein Harrington
appeared lethargic), which occurred immediately before ordering
him out of the vehicle, only increased Officer Pittman's reasonable
suspicion. Thus, it was permissible for Officer Pittman to order
Harrington out of the vehicle on those grounds. United States v.
Taylor, 511 F.3d 87, 92 (1st Cir. 2007) (analyzing whether there
was "sufficient reasonable suspicion to justify [an officer's]
decision to order [a defendant] to step out of [a parked] car").
Second, Harrington argues that Officer Pittman lacked
reasonable suspicion to believe that he was armed and dangerous.
We do not agree. We are careful to make this decision on the
totality of the circumstances and hold that Officer Pittman's frisk
was supported by objective and particularized facts sufficient to
give rise to reasonable suspicion that Harrington was armed and
dangerous.
The Fourth Amendment protects against warrantless
searches and seizures, subject to limited established exceptions.
One of these exceptions is a Terry pat-frisk. Terry held that
- 13 - when an officer "observes unusual conduct which leads him
reasonably to conclude . . . that criminal activity may be afoot"
and that the defendant is "armed and presently dangerous," the
officer may engage in a "limited search of the outer clothing of
such persons in an attempt to discover weapons which might be used
to assault [the officer]." 392 U.S. at 30. Such weapons can
include "guns, knives, clubs or other hidden instruments." Id. at
29.
To determine whether a pat-frisk for weapons is
appropriate, we ask whether the investigatory stop was valid and
whether "the officer is justified in believing that the person is
armed and dangerous to the officer or others." United States v.
McKoy, 428 F.3d 38, 39 (1st Cir. 2005). Having concluded that
Officer Pittman had reasonable suspicion that criminal activity -
- illegal drug use and possession -- was occurring, we address
whether Officer Pittman had reasonable suspicion that Harrington
was armed and dangerous such that a pat-frisk would be permissible.
The reasonable suspicion standard for the pat-frisk is
the same as that for the initial stop except it focuses on whether
the individual is "armed and dangerous." Id. Thus, whether
Officer Pittman's suspicions were reasonable is a "fact-sensitive
task" which looks at the totality of the circumstances to determine
whether there is a particularized, objective basis to suspect
someone is armed and dangerous. United States v. Chhien, 266 F.3d
- 14 - 1, 8 (1st Cir. 2005). A "mosaic" of factors may be used to justify
reasonable suspicion, Ornelas v. United States, 517 U.S. 690, 698
(1996), including the suspect's behavior, the context of the stop,
and the crime rate in the area, Wardlow, 528 U.S. at 124-25. The
standard is objective -- the arresting officer's subjective intent
is irrelevant. Tiru-Plaza, 766 F.3d at 116.
suspicion to believe he was armed and dangerous because of his
weakened state -- he "was acting lethargic, swaying from side to
side and appeared to be reaching around." Further, he was not
"belligerent," "angry," or "resisting arrest."
Objectively, the facts before us give rise to reasonable
concern for officer safety. We begin with the facts known to
Officer Pittman -- whom the district court found credible -- prior
to the pat-frisk. See Florida v. J.L., 529 U.S. 266, 271 (2000)
("[R]easonableness of official suspicion must be measured by what
the officers knew before they conducted their search."). Officer
Pittman had observed multiple indications that Harrington was
under the influence of drugs, as discussed above. See United
States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (noting
connection between drug transactions and weapons); Arnott, 758
F.3d at 45 (same). Further, when Officer Pittman asked Harrington
to step out of the vehicle, he delayed exiting and reached around
inside the vehicle, near the center console area. Once out of the
- 15 - vehicle, Officer Pittman instructed Harrington to place his hands
on top of his head, but while Harrington placed one hand over his
head, he moved the other toward his pocket. Finally, Officer
Pittman knew that he was responding to a call in an area known for
high drug use. Although "[a]n individual's presence in an area of
expected criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the person is
committing a crime," police can consider the "relevant
characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further
investigation." Wardlow, 528 U.S. at 124. Additionally, the
Supreme Court has stated that an "officer need not be absolutely
certain that the individual is armed" to conduct a pat-frisk.
Terry, 392 U.S. at 27.
Thus, by the time of the pat-frisk, a reasonable officer
could point to "specific and articulable facts, which taken
together with rational inferences from those facts," would
reasonably warrant the pat-frisk given fear for officer safety.
Id. at 21. Namely, the observation of two men passed out; the
location of the vehicle in a high-crime area; the clear signs of
opioid impairment; and, most notably, Harrington's reaches for
something inside the vehicle, his noncompliance when asked to place
both hands on top of his head, and his reach toward his pocket.
These facts, and, in particular, Harrington's noncompliance on
- 16 - more than one occasion, combined with the common association
between drug transactions and weapons gave the police reason to
suspect the presence of a traditional weapon as contemplated by
Terry. See, e.g., Bustos-Torres, 396 F.3d at 943 ("Because weapons
and violence were frequently associated with drug transactions, it
is reasonable for an officer to believe a person may be armed and
dangerous when the person is suspected of being involved in a drug
transaction."). When taken together, these facts support a
reasonable suspicion that Harrington was armed and dangerous.
Harrington claims that Officer Pittman testified that he
did not believe that Harrington was armed with a "firearm, knife,
or other type of projectile weapon,"1 and thus could not have
believed Harrington was armed and dangerous. However, this
argument misconstrues the reasonable suspicion standard. The test
1 The government argues that beyond these objective facts, we should acknowledge that Officer Pittman also had a subjective fear that Harrington might have a hypodermic needle which he could use to stab him or medical personnel. The government urges us to hold that a hypodermic needle qualifies as a weapon under Terry. While some courts have concluded that a needle may be considered a weapon for purposes of Terry, we need not decide that issue in this case. See, e.g., United States v. Rush, No. 15-CR-105, 2015 WL 4364669, at *4 (D. Minn. Jul. 13, 2015) ("The limited pat-down search for needles was permissible under Terry to ensure officer safety, since the hypodermic needles could easily be used as weapons."); United States v. Gillespie, 2006 WL 533774, at *2 (E.D. Tenn. Mar. 3, 2006) (finding that an officer's efforts to ensure he would not be stuck with a needle were reasonable). Instead, we find sufficient objective facts to conclude that a reasonable officer would suspect that Harrington possessed one of the traditional weapons already covered by our Terry jurisprudence.
- 17 - is objective, asking whether a reasonable officer in Officer
Pittman's shoes would have believed Harrington was armed and
dangerous, not whether Officer Pittman himself believed Harrington
was armed and dangerous. Espinoza, 490 F.3d at 47 (citing Romain,
393 F.3d at 74). Even though Officer Pittman did not believe
Harrington had one of the weapons he described, a reasonable
officer would have had this suspicion given the relationship
between drug transactions and firearms; the circumstances in which
Harrington was found; and the fact that Harrington reached around
in his car and toward his pocket while Officer Pittman was speaking
with him. See Arnott, 758 F.3d at 45 ("The connection between
drugs and violence is, of course, legendry."); United States v.
Dubose, 579 F.3d 117, 122 (1st Cir. 2009) (holding, among other
things, that a pat-frisk search was valid including because "drug
dealers often carry weapons concealed in their waistbands");
United States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987)
(affirming the validity of a pat-frisk noting that "concealed
weapons [are] part and parcel for the drug trade").
Moreover, our holding is in line with our decision in
McKoy. There, we held that the officer lacked reasonable suspicion
to pat-frisk the defendant after he was stopped in a high-crime
area for a parking and license plate violation and leaned toward
the center console as the officer approached, since there is
"nothing sinister or menacing" about this movement as it is
- 18 - "consistent with reaching for a driver's license or registration."
Id. at 40. Unlike in McKoy, we do not have a traffic stop for
parking and license violations and a single abnormal movement on
the part of the defendant. Rather we have a stop prompted by a
phone call suggesting drug use in an area known for such use,
observations by an officer of symptoms of use of opiates, an
individual reaching for something near the center console after
being asked to step out of the vehicle, and noncompliance after
the individual is instructed to place both hands over his head.
When taken together, this abnormal behavior would lead a reasonable
officer to believe an individual is armed and dangerous.
Harrington further argued at oral argument that a
reasonable officer could not have considered him armed and
dangerous because of his debilitated state. Harrington would have
us hold that his swaying from side to side and lethargic behavior
ameliorated any legitimate concern that he posed a danger.
However, as the district court stated, "persons suspected of drug
use often exhibit unpredictable changes in behavior or erratic
behavior." Harrington, 557 F. Supp. 3d at 334. At this point in
the stop, it would be reasonable for an officer to suspect that
Harrington was under the influence of opiates and consequently,
that he may engage in impulsive behavior.
Finally, we note that we are careful to cabin our holding
to the facts of this case and in particular, the totality of the
- 19 - circumstances -- including the high-crime area, the anonymous tip,
obvious signs of drug impairment, the relationship between drug
transactions and traditional weapons, the reach toward the center
console, and the reach toward his pocket -- as required by our
Fourth Amendment jurisprudence.
III. CONCLUSION
Thus, we conclude that because Officer Pittman had
reasonable suspicion for the initial encounter, for extending the
stop, and to believe Harrington was armed and dangerous, there was
no Fourth Amendment violation to warrant exclusion of the evidence.
We thus affirm the denial of Harrington's motion to suppress.
- 20 -