United States v. Romain

United States Court of Appeals
For the First Circuit

No. 04-1297

UNITED STATES OF AMERICA,

Appellee,

v.

CARL S. ROMAIN, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl and Leval,* Senior Circuit Judges.

Syrie D. Fried, Federal Defender Office, for appellant.
Virginia M. Vander Jagt, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on
brief, for appellee.

December 29, 2004

__________
*Of the Second Circuit, sitting by designation.
 SELYA, Circuit Judge. Faced with criminal charges

related to his possession of a firearm and ammunition, defendant-

appellant Carl S. Romain, Jr. moved to suppress those artifacts.

After the district court denied his motion, the appellant entered

a conditional guilty plea, reserving the right to challenge that

order. He now appeals, importuning us to hold that the police

obtained the firearm and ammunition in violation of his Fourth

Amendment rights.

In mounting this challenge, the appellant contests the

constitutionality both of the officers' entry onto certain premises

and of their ensuing actions. The record, however, adequately

supports the lower court's conclusion that the officers were

lawfully on the premises pursuant to the principal occupant's

consent and that they seized the incriminating articles in the

course of a permissible security frisk. Consequently, we uphold

the denial of the motion to suppress and affirm the appellant's

conviction and sentence.

I. BACKGROUND

In 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. Lee, 317 F.3d

26, 30 (1st Cir. 2003).

On the evening of October 19, 2002, a 911 emergency

operator fielded a call from a woman who exclaimed that "someone's

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in here with a gun. I was visiting here with my friend, and he's

in here with a gun." When the operator inquired whether the woman

was placing the call surreptitiously, the woman responded by asking

that the call be traced.

A police dispatcher sent Officers Martin O'Malley and

Joseph Garcia to the location whence the call originated. The

dispatcher told the officers that he was "getting a call at 65

Lonsdale, third floor. The female says there's a man in their

apartment there with a gun . . . allegedly armed with a handgun

there." According to Officer O'Malley, the dispatcher explained

that the caller was "very evasive on the phone and was pretending

as if she was talking with a friend."

Because the dispatcher gave the assignment "Priority 1"

status, the officers hastened to the Lonsdale Street address.

Officer Emanuel Damberville joined them there. Officer Garcia went

to the back of the building while his confreres climbed the stairs

to the third floor. The police knocked at the front door of the

third-floor flat and two women opened the door. The officers

explained why they were there and inquired whether there was anyone

with a gun in the apartment. One of the women, later identified as

Annsyya Jones, replied in the negative. The other woman, later

identified as Margaret Jones, nodded affirmatively.

The officers then asked whether they could take a look

inside the apartment. The women responded that they did not mind

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and welcomed the officers inside. The officers did not know at

that time who the women were or how they came to be on the premises

(although it was subsequently determined that Annsyya Jones was the

tenant and that Margaret Jones was a visitor).

Almost immediately after the policemen entered, the

appellant emerged from a bedroom and demanded to know why they were

there. Officer O'Malley explained that the police had received a

radio call and asked whether the appellant was carrying a gun. The

appellant replied in the negative but, apparently aggravated by the

officers' presence, began to flail his arms and shout: "What are

you doing here? What do you want?" Then the appellant, who was

"visibly agitated," strode into Officer O'Malley "as if he [were]

trying to walk through [him]." The officer responded by seizing

the appellant and placing him against a nearby wall. When asked

again whether he was armed, the appellant repeated that he was not.

Leaving Officer Damberville to watch the appellant,

Officer O'Malley went to see what he could learn from the two

women. He took Margaret Jones into the kitchen and asked whether

she had placed the 911 call. She told him that she had and that

the man whom the officers had encountered was carrying a firearm in

the front of his pants. When Officer O'Malley continued his

questioning, she remained adamant that the appellant had a gun in

his waistband.

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 Officer O'Malley returned to the appellant and asked for

a third time whether he was carrying a firearm. After receiving a

negative response, the officer performed a pat-down, starting at

the appellant's waist. Feeling what he believed to be a firearm,

he lifted the appellant's sweatshirt and observed the butt of a

gun. The appellant attempted to pull away, provoking a struggle.

At that juncture, Officer Garcia entered the apartment and helped

his colleagues subdue the appellant. The officers retrieved a .32

caliber automatic, loaded with six bullets, from the front of the

appellant's pants.

In short order, the police arrested the appellant,

ascertained that he had no license to carry the gun, and

transported him to the station house for booking.

II. TRAVEL OF THE CASE

In due season, a federal grand jury charged the appellant

with being a felon in possession of a firearm and ammunition and

with possession of the same articles while being subject to a

domestic restraining order. See 18 U.S.C. §§ 922(g)(1), 922(g)(8).

The appellant moved to suppress the firearm and the ammunition,

contending (i) that the police had unlawfully entered the

apartment, and (ii) that, even if the entry was lawful, the 911

call amounted to no more than an anonymous, uncorroborated tip,

which did not supply reasonable, articulable suspicion sufficient

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to bring the ensuing detention and frisk within the constitutional

pale.

The district court held an evidentiary hearing at which

both Officer O'Malley and the appellant testified. The court

credited the former's testimony "in every material particular."

Predicated on that testimony, the court impliedly found consent to

enter the apartment and explicitly found that the collocation of

circumstances, including the 911 call, Margaret Jones's affirmative

nod in response to Officer O'Malley's initial query about the

presence of an armed man in the apartment, and the appellant's

aggressive behavior when the police arrived, combined to justify

the temporary detention. The court then found that those facts,

augmented by the information gleaned during the officer's private

interview with Margaret Jones, justified the protective frisk.

Based on those findings, the court denied the motion to suppress.1

The appellant subsequently entered a conditional guilty

plea, see Fed. R. Crim. P. 11(a)(2), reserving the right to seek

appellate review of the suppression order. After the court imposed

a 180-month incarcerative term, the appellant prosecuted the

instant appeal.

1
The appellant also moved to suppress certain statements that
he had made after his arrest but before receiving Miranda warnings.
See Miranda v. Arizona, 384 U.S. 436, 479 (1966). The district
court excluded those statements and the government has not
contested that disposition.

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III. ANALYSIS

The appellant's asseverational array breaks down into two

discrete segments involving (i) the officers' entry into the

apartment and (ii) the temporary detention and frisk that ensued.

We consider each segment in turn, accepting the district court's

findings of fact to the extent they are not clearly erroneous and

subjecting its legal conclusions to de novo review. See United

States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).

A. The Entry.

The Fourth Amendment does not protect privacy in any and

all circumstances. Among other limitations, a criminal defendant

who wishes to embark upon a Fourth Amendment challenge "must show

that he had a reasonable expectation of privacy in the area

searched and in relation to the items seized." United States v.

Aguirre, 839 F.2d 854, 856 (1st Cir. 1988). Although the usage is

imprecise, see Rakas v. Illinois, 439 U.S. 128, 138-40 (1978),

courts frequently refer to this threshold requirement as

implicating "standing," see, e.g., Aguirre, 839 F.2d at 856-57.

For simplicity's sake, we shall adopt that nomenclature here.

Inasmuch as a criminal defendant cannot challenge a

search or seizure unless and until he has crossed the "standing"

threshold, we preface our discussion of the appellant's claim that

the officers' entry into the apartment violated his Fourth

Amendment rights with a few words about his standing. Following

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that discourse, we proceed to chart the remainder of the relevant

legal landscape and apply the discerned principles to the facts.

Relying on the Supreme Court's decision in Minnesota v.

Olson, 495 U.S. 91 (1990), the appellant posits that his status as

a fairly regular overnight guest in the apartment gave him a

reasonable expectation of privacy within its confines (and,

therefore, that he has standing to mount a Fourth Amendment

challenge to the officers' entry). We accept that argument for two

reasons.

First, although the government disputed the appellant's

standing in its opposition to his motion to suppress, it has not

rekindled that dispute on appeal. An appellate court is free to

deem abandoned claims or defenses that the government (or any other

litigant, for that matter) fails to argue. See United States v.

Rodriguez-Marrero, 390 F.3d 1, ___ (1st Cir. 2004) [No. 01-1647,

slip op. at 32]; United States v. Caraballo-Cruz, 52 F.3d 390, 393

(1st Cir. 1995). The government has, therefore, effectively

conceded the existence of standing.

Second, the district court credited the appellant's

testimony as to the frequency and duration of his visits to the

apartment and made findings of fact to the effect that the

appellant had keys to the flat and was there on the evening in

question as an overnight guest. These findings are unimpugnable,

and they bring the appellant squarely within the rule that an

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overnight guest has a legitimate expectation of privacy in his

host's abode. Olson, 495 U.S. at 98. Consequently, even apart

from the government's implied concession, it appears that the

appellant has standing to challenge the officers' entry into the

apartment.

We next consider the legal principles applicable to the

entry. The Fourth Amendment protects individuals "against

unreasonable searches and seizures." U.S. Const. amend. IV. A

warrantless police entry into a residence is presumptively

unreasonable unless it falls within the compass of one of a few

well-delineated exceptions. See United States v. Coraine, 198 F.3d

306, 309 (1st Cir. 1999). One such exception is for a consensual

entry. United States v. Laine, 270 F.3d 71, 74-75 (1st Cir. 2001).

The government bears the burden of demonstrating that consent was

validly obtained. Id. at 75. This entails a showing that an

appropriate person voluntarily gave a valid consent. See id.

Typically, whether consent is voluntary turns on

questions of fact, determinable from the totality of the

circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973); Laine, 270 F.3d at 75. For that reason, a finding of

voluntary consent (other than one based on an erroneous legal

standard) is reviewable only for clear error, Laine, 270 F.3d at

74, and the trial court's credibility determinations ordinarily

must be respected, United States v. Marshall, 348 F.3d 281, 286

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(1st Cir. 2003). The operative inquiry is whether the evidence

presented at the suppression hearing fairly supports the court's

finding with respect to voluntary consent. Laine, 270 F.3d at 75.

In formulating our answer to this inquiry, "a district court's

choice between two plausible competing interpretations of the facts

cannot be clearly erroneous." United States v. Weidul, 325 F.3d

50, 53 (1st Cir. 2003).

In this case, the government presented competent evidence

of a consensual entry. Officer O'Malley testified that both

Annsyya and Margaret Jones responded to his request to look around

the flat by "welcom[ing] us into the apartment" (we focus herein on

Annsyya, because she was the principal occupant of the apartment

and, therefore, a person plainly authorized to give valid

consent).2 When cross-examined, the officer reiterated that he

"actually asked them if we could come in the apartment and they

welcomed us in." The district court credited Officer O'Malley's

testimony "in every material particular." Since this testimony is

2
The appellant argues vociferously that any consent by
Margaret Jones would be irrelevant because, as a mere guest with no
proprietary interest in the residence, she lacked authority to give
consent. Since we discern no clear error in the district court's
implied finding that Annsyya Jones consented to the entry, we need
not determine the relevance of Margaret Jones's alleged consent.
For clarity's sake, however, we note that actual authority is not
necessarily the sole focus of the voluntary consent inquiry;
apparent authority can support a finding of consent as long as the
officer reasonably believed that the person giving consent was
authorized to do so. See Illinois v. Rodriguez, 497 U.S. 177, 186
(1990); Marshall, 348 F.3d at 285.

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plausible on its face and not inconsistent with the other

information that is known about the events in question, the

district court's finding warrants our approbation. See, e.g.,

United States v. Del Rosario, 388 F.3d 1, 12 (1st Cir. 2004).

The appellant maintains that our decision in United

States v. Weidul demands a different result. There, we affirmed

the trial court's finding that there was no voluntary consent.

Weidul, 325 F.3d at 54. The appellant argues that the

circumstances were similar and, thus, that the trial court in this

case clearly erred in drawing an opposite conclusion. We disagree

for two reasons. First, the facts as supportably found by the

trial courts in the two cases are significantly different. Second,

the appellant's argument totally overlooks the standard of review.

In Weidul, the defendant called medical emergency

services, reported that he had a gun to his head, and proclaimed

that he was about to commit suicide. Id. at 52. The call had

originated from the home of the defendant's fiancée and police

officers were dispatched to that locus. Id. While the officers

were in transit, the fiancée telephoned the police dispatcher,

announced that the situation had been diffused, and indicated that

no help was needed. Id. The police nevertheless proceeded to the

scene and, with the fiancée's cooperation, entered her home and

removed the defendant. Id. After arranging for his transportation

to a hospital, the officers reentered the home without permission.

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Once inside, they persisted in a room-by-room search. Id. at 52-

53.

On these facts, the district court found that the fiancée

had not voluntarily consented to the search and, therefore,

suppressed the evidence seized. Id. at 51, 54. We affirmed on the

basis that the lower court's factual findings were "fairly

supported by the record" and that the government's evidence

favoring the opposite conclusion (for example, that the fiancée had

said "okay" or remained mute when the police, after effecting the

unauthorized reentry, inquired about searching particular rooms)

did not suffice to render those findings clearly erroneous. Id. at

54.

Leaving to one side that the facts of Weidul are plainly

distinguishable from those of the instant case, that decision does

not help the appellant. Assuming the trial court's use of correct

legal principles, the proper office of an appellate court reviewing

the grant or denial of a motion to suppress is not to decide

whether it, if sitting in the trial court's stead, might have

reached a contrary conclusion, but, rather, to decide whether the

trial court's factual findings derive adequate support from the

record. See United States v. Rutkowski, 877 F.2d 139, 144 (1st

Cir. 1989); see also Reliance Steel Prods. Co. v. Nat'l Fire Ins.

Co., 880 F.2d 575, 576 (1st Cir. 1989) (noting that factfinding and

credibility determinations are "the staples of a trial court's

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diet"). Exercising that office, the Weidul court held that, on the

facts of record, a "no consent" finding was not clearly erroneous.

We exercise the same office, and there is no discrepancy between

the Weidul court's decision and the decision that we reach today.

In a final effort to scotch the possibility of a

consensual entry, the appellant notes that the lower court never

made an express finding that Annsyya Jones validly consented to the

entry. That is true as far as it goes — but it does not take the

appellant very far. The law does not require trial courts to

render encyclopedic decisions.

This case is a good example. Officer O'Malley testified

that the two women consented to the officers' entry and welcomed

them into the flat. The trial judge credited Officer O'Malley's

testimony explicitly and unreservedly. The most logical inference,

then, is that the judge concluded that Annsyya Jones had consented

to the entry. No more is exigible to allow us to treat the court's

decision as premised upon that finding.

That ends this aspect of the matter. The district

court's implied finding that Annsyya Jones voluntarily consented to

the gendarmes' entrance into her apartment validates the entry and

eliminates the need for some other constitutionally acceptable

justification (say, a search warrant). We hold, therefore, that

the officers' entry into the apartment was not in violation of the

Fourth Amendment.

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 B. The Temporary Detention and Frisk.

The appellant maintains that even if the officers' entry

into the apartment passed constitutional muster, they lacked lawful

authority to detain him and perform a frisk for weapons. This line

of argument redirects our analytic course to the law governing the

search and seizure of persons.

A temporary detention of an individual constitutes a

seizure within the purview of the Fourth Amendment and, therefore,

is subject to the constitutional imperative that it must be

reasonable under all the circumstances. See Terry v. Ohio, 392

U.S. 1, 16, 19 (1968); Lee, 317 F.3d at 31. The Terry Court

established the baseline rule, holding that an officer may conduct

a brief investigatory stop if he has a reasonable, articulable

suspicion that criminal activity is afoot. See Terry, 392 U.S. at

30. Although the showing required to meet this standard is

considerably less demanding than that required to make out 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. See id. at 27.

A court inquiring into the validity of a Terry stop must

use a wide lens and survey the totality of the circumstances. See

United States v. Sokolow, 490 U.S. 1, 8 (1989). The inquiry must

consider "whether the officer's actions were justified at their

inception, and if so, whether the officer's subsequent actions were

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fairly responsive to the emerging tableau." United States v.

Chhien, 266 F.3d 1, 6 (1st Cir. 2001). Generally speaking, a stop

is justified at its inception if the officer can "point to specific

and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant [the] intrusion."

Terry, 392 U.S. at 21; see United States v. Young, 105 F.3d 1, 7

(1st Cir. 1997).

Police officers are not limited to personal observations

in conducting investigatory activities, and reasonable suspicion

for a Terry stop may be based on information furnished by others.

See Adams v. Williams, 407 U.S. 143, 147 (1972). That does not

mean, however, that an officer may indiscriminately credit gossip

or innuendo. An officer may rely upon an informant's tip to

establish reasonable suspicion only if the information carries

"sufficient 'indicia of reliability'" to warrant acting upon it.

Alabama v. White, 496 U.S. 325, 328 (1990) (quoting Adams, 407 U.S.

at 147). That determination entails an examination of all the

circumstances bearing upon the tip itself and the tipster's

veracity, reliability, and basis of knowledge. See id. at 328-29.

The propriety of an officer's actions after an initial

stop depends on what the officer knows (or has reason to believe)

and how events unfold. See Chhien, 266 F.3d at 6. The touchstone

is reasonableness. Thus, in determining whether a pat-down search

is an appropriate step following a valid Terry stop, the key is

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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. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994).

With these tenets in mind, we rehearse the facts known to

the officers, as well as those that they reasonably could have

inferred, at the time they placed the appellant against the wall.

We proceed from there to the facts known or inferable at the time

of the pat-down.

The officers received information from the dispatcher

that a 911 caller had reported that she was inside an apartment

with an armed man. The emergency nature of a 911 call supported a

reasonable inference that the woman felt threatened by her

situation and desired police protection; the dispatcher's comment

that the woman was pretending to be talking to a friend supported

a further inference that the circumstances prevented her from

providing a full picture of the peril presented by the man with the

gun.

When the officers reached the premises, one of the two

women who opened the door confirmed that an armed man was inside.

The fact that this was done by a nod rather than by a declarative

statement does not divest it of significance; the woman's gesture

provided face-to-face corroboration of the essence of the 911

report, and her unwillingness to vocalize lent credence to the

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possibility that she faced some kind of threat that inhibited her

from speaking aloud.

When the officers entered the flat, a man materialized

from another room, flew into a rage, and charged toward them. His

presence in the apartment made it highly likely that he was the man

reported to be carrying a firearm. His belligerence, combined with

the initial tip, gave rise to a reasonable suspicion that he might

have been involved in criminal wrongdoing (say, menacing the

occupants of the apartment) as well as a reasonable concern for the

officers' safety.

It is common ground that "[e]valuating whether an

officer's suspicions are (or are not) reasonable is a fact-

sensitive task, bound up in the warp and woof of the surrounding

circumstances." Chhien, 266 F.3d at 8. As such, some "[d]eference

is due to the experienced perceptions of the officers." United

States v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). Ceding that

deference here, we conclude, without serious question, that the

temporary detention — placing the appellant up against the wall —

was justified at its inception because the officers had a

reasonable suspicion that the appellant was armed and had acted in

such a way as to threaten the person who placed the 911 call.

Having concluded that the officers were warranted in

briefly detaining the "visibly agitated" man (whom they reasonably

suspected of carrying a gun) in order to investigate the situation

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further, we next consider the frisk. In addressing this point, it

is important to recall that Officer O'Malley's private audience

with Margaret Jones yielded several nuggets of information: that

she had placed the 911 call; that the man whom the police had

detained was the man she had described as armed in that call; and

that the gun was in the waistband of the man's pants. Having mined

these nuggets and noted the appellant's frenetic behavior, the

police had a plausible basis for suspecting that the appellant was

armed and dangerous. That, in turn, formed the basis for a

reasonable belief that a frisk was necessary to protect the safety

of both the civilians within the apartment and the officers

themselves. See, e.g., United States v. Taylor, 162 F.3d 12, 17

(1st Cir. 1998) (noting that, in the context of a valid Terry stop,

a reasonable safety concern justifies disarming the suspect).

The frisk that Officer O'Malley subsequently conducted

was restricted to the bare minimum needed to detect the presence of

a firearm. He began at the appellant's waist (where the informant

had stated that the appellant kept his weapon) and went no further

than to extract the gun. This course of action was reasonable

under the circumstances and, thus, constitutionally appropriate.

See Terry, 392 U.S. at 26.

The appellant advances three counter-arguments in an

effort to blunt the force of this reasoning. None is persuasive.

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 First, the appellant attempts to attack the officers'

evidentiary portfolio by characterizing Margaret Jones as an

anonymous (and, thus, inherently unreliable) tipster. In pressing

this attack, the appellant points out that the police did not know

Margaret Jones before the occurrence of these events and that she

remained nameless from the time of the 911 call until after the

arrest. In the appellant's view, her continuing anonymity

triggered an unmet requirement of independent corroboration.

The appellant bases this argument on the Supreme Court's

decision in Florida v. J.L., 529 U.S. 266 (2000). But he reads

that decision through rose-colored glasses. In J.L., the Court,

discussing a tip that emanated from an "unknown caller" who phoned

from an "unknown location" and offered no indication of the basis

for the information provided, confirmed that such an anonymous tip,

standing alone, seldom will exhibit sufficient indicia of

reliability to support reasonable suspicion for an investigatory

stop. See id. at 270. The Court took pains to contrast such a

source with "a known informant whose reputation can be assessed and

who can be held responsible if her allegations turn out to be

fabricated." Id.

While this case falls somewhere between these two

descriptions, Margaret Jones more closely resembles the latter

example because the police confirmed that the caller was not merely

communicating an anonymous tip of dubious reliability. She said

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from the start that she was in an apartment with a man who had a

gun, supporting a likelihood that she had seen the gun. And the

manner in which she communicated the information on the telephone

suggested a likelihood that she was concerned for her own safety.

Thereafter, her willingness to reconfirm the accusation in person,

under circumstances that might immediately reveal its truth or

falsity, suggests a higher degree of reliability than a wholly

anonymous telephone call (as to which the caller would suffer no

adverse consequences if the police took action and the tip proved

apocryphal).

Given these considerations, Margaret Jones's tip cannot

plausibly be said to be anonymous and unreliable in the sense that

concerned the J.L. Court. Unlike a faceless telephone

communication from out of the blue, a face-to-face encounter can

afford police the ability to assess many of the elements that are

relevant to determining whether information is sufficiently

reliable to warrant police action. See White, 496 U.S. at 328-29.

A face-to-face encounter provides police officers the opportunity

to perceive and evaluate personally an informant's mannerisms,

expressions, and tone of voice (and, thus, to assess the

informant's veracity more readily than could be done from a purely

anonymous telephone tip). See, e.g., United States v. Heard, 367

F.3d 1275, 1279 (11th Cir. 2004); United States v. Campa, 234 F.3d

733, 738 (1st Cir. 2000). In-person communications also tend to be

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more reliable because, having revealed one's physical appearance

and location, the informant knows that she can be tracked down and

held accountable if her assertions prove inaccurate. See J.L., 529

U.S. at 270-71. Finally, a face-to-face encounter often provides

a window into an informant's represented basis of knowledge; for

example, her physical presence at or near the scene of the reported

events can confirm that she acquired her information through first-

hand observation. See, e.g., United States v. Lewis, 40 F.3d 1325,

1334 (1st Cir. 1994).

In this case, the appellant would have us attach

decretory significance to the fact that Margaret Jones was, at the

times material hereto, anonymous — the officers did not learn her

name until after they had made the arrest. This perspective gives

an artificially literal meaning to the adjective "anonymous" and,

in the bargain, mistakenly emphasizes the label rather than the

contents of the package. The dispositive difference between this

case and J.L. is that, here, the officers had in-person contacts

with Margaret Jones, and those contacts, although limited, allowed

them to gauge her veracity and to make some informed assessment of

the reliability of the tip (e.g., her face-to-face reconfirmation

and her presence in the apartment provided some assurance that her

assertions were based upon first-hand knowledge).

In the last analysis, words are like chameleons; they

frequently have different shades of meaning depending upon the

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circumstances. See, e.g., Hanover Ins. Co. v. United States, 880

F.2d 1503, 1504 (1st Cir. 1989). The informant here was not

"anonymous" as the J.L. Court employed that term and the

information was not, as in J.L., a "tip" that had no discernible

basis. Hence, we agree with the district court that it was

reasonable for the officers to rely on the as-yet-nameless

informant's statements in making their Terry determinations.

The appellant next argues that a combination of two facts

— that Officer O'Malley had a specific purpose (retrieving a gun)

and a specific target (the waistband of the appellant's pants) —

invalidates the protective frisk and converts it into a search for

evidence (which would have had to have been justified by probable

cause).

This is resupinate reasoning. In determining whether an

officer had reasonable suspicion to justify a Terry stop and

protective frisk, the officer's subjective motives do not enter

into the decisional calculus. See Whren v. United States, 517 U.S.

806, 812 (1996); United States v. Trueber, 238 F.3d 79, 92 (1st

Cir. 2001). The appellant has pointed to no relevant authority

suggesting that a particular subjective motive alters the familiar

focus of the Terry analysis, which is "the objective significance

of the particular facts under all the circumstances." Woodrum, 202

F.3d at 7 (emphasis supplied). What is more, if the police conduct

a Terry frisk justified by fear for their safety arising from

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information about a gun in a person's waistband, the waist area is

logically the first place that one would expect the officers to

look.

If more were needed — and we doubt that it is — the

Supreme Court has applied the Terry doctrine in reviewing a

targeted frisk of a defendant's waistband. In Adams v. Williams,

the Court concluded that a "policeman's action in reaching to the

spot where the gun was thought to be hidden constituted a limited

intrusion designed to insure his safety" and was reasonable under

the circumstances. 407 U.S. at 148. It follows inexorably that

Officer O'Malley's beeline to the place where he suspected a weapon

would be found does not undermine our characterization of the

intrusion as a valid Terry frisk.

In a last-ditch stand, the appellant contends that the

Terry doctrine lacks force within the home because of the

heightened expectations of privacy that operate in that domain. To

support this contention, he leans upon the dissenting opinion in

United States v. Beaudoin, 362 F.3d 60, 71 (1st Cir. 2004) (Lipez,

J., dissenting). A dissenting opinion is, of course, not binding

precedent, and the majority opinion in Beaudoin, which is

controlling on this panel, applied Terry in the quasi-residential

setting involved there (a doorway of a hotel room). See United

States v. Beaudoin, 362 F.3d 60, 67-68 (1st Cir.) (en banc), cert.

denied, 125 S. Ct. 484 (2004) [No. 04-5440].

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 In all events, the Beaudoin dissent focused on the

validity of the initial seizure of the defendant. See id. at 76-77

(Lipez, J., dissenting). It did not directly address the

multifaceted question of whether and in what circumstances a

security frisk is permissible where, as in this case, an officer

legitimately secures consent to enter residential premises. Fairly

read, then, the Beaudoin dissent does not commit to a per se rule

that would prevent the Terry doctrine from crossing the threshold

into the home.

Beaudoin aside, the appellant's argument cannot withstand

scrutiny. In Terry, the Supreme Court recognized the need to

reconcile an individual's Fourth Amendment right against

unreasonable personal invasions with the "immediate interest of the

police officer in taking steps to assure himself that the person

with whom he is dealing is not armed with a weapon that could

unexpectedly and fatally be used against him." Terry, 392 U.S. at

23. The appellant argues, in effect, that because the Terry Court

dealt with "the myriad daily situations in which policemen and

citizens confront each other on the street," id. at 12 (emphasis

supplied), this court should limit its logic to such public

encounters and should not extend that logic to protective actions

taken in the course of legitimate investigative activities

(including emergency responses to 911 calls) that bring police

within the sanctuary of a person's home. This argument is

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misguided. It invites us to disregard entirely one side of the

balance that Terry struck (the serious concern for officer safety)

simply because the interest on the other side (the right to be

secure against intrusions in the home) deserves heightened

protection.

We decline this invitation. We find no support for the

proposition that the in-home setting automatically eclipses any and

all interests in officer safety. To the contrary, in deciding

whether a requirement less demanding than probable cause can

justify certain police activities involving the home, the Court has

emphasized that "there is 'no ready test for determining

reasonableness,'" Maryland v. Buie, 494 U.S. 325, 332 (1990)

(quoting Terry, 392 U.S. at 21), and has balanced the nature of the

intrusion against the contextualized concern for officer safety,

see id. at 332-34 (holding that the heightened risk of jeopardy to

the police in the context of an in-home arrest outweighed the

intrusion entailed in a protective sweep of the premises for

dangerous individuals). In much the same vein, the Court recently

reemphasized that "for the most part per se rules are inappropriate

in the Fourth Amendment context." United States v. Drayton, 536

U.S. 194, 201 (2002). The appropriate inquiry, as we have said,

entails a consideration of the totality of the circumstances

surrounding an encounter. Id.

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 In applying the Terry doctrine to areas in and around the

home, our case law has followed these principles, eschewing bright-

line rules and treating the residential nature of the premises as

part of the totality of the circumstances in determining whether

reasonable suspicion justified particular police actions. See,

e.g., United States v. Moore, 235 F.3d 700, 702-04 (1st Cir. 2000)

(sustaining a Terry stop and frisk of a person detained in a

second-floor internal stairwell upon his egress from a third-floor

apartment); Campa, 234 F.3d at 736-38 (upholding a Terry stop and

frisk of a defendant apprehended inside an apartment and moved into

the hallway). Other courts have held, as we do today, that once an

officer is legitimately on residential premises pursuant to consent

or other lawful authority, individualized suspicion that a person

is armed may justify a frisk. See United States v. Brooks, 2 F.3d

838, 842 (8th Cir. 1993) ("Following a consensual or otherwise

lawful entry into a private dwelling, police can pat a suspect down

for weapons if they have a reasonable, particularized suspicion

that the suspect is armed."); United States. v. Flippin, 924 F.2d

163, 165-66 (9th Cir. 1991) (similar).

The most natural reading of Terry suggests that its

rationale is designed to address the need for officer safety in the

course of all legitimate investigative activities. We have been

faithful to the core principle of Terry here by requiring

individualized suspicion and accounting for the totality of the

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circumstances that enter into the delicate balance posed by

constitutional and practical concerns.3

IV. CONCLUSION

We need go no further. The record in this case supports

the conclusion that the officers entered the premises with the

consent of the principal occupant. Similarly, it supports the

conclusion that the totality of the circumstances gave rise to a

reasonable, articulable suspicion sufficient to justify the ensuing

detention and frisk.4 Accordingly, we uphold the district court's

denial of the motion to suppress.

Affirmed.

3
This case-specific approach means, of course, that our
opinion is duly limited to the circumstances of this case. Just as
we decline to adopt a per se rule banning the Terry doctrine from
residential settings, we similarly decline any rule-like suggestion
that Terry's requirement of particularized suspicion is in any way
diminished within the home simply because an officer legitimately
enters upon its premises. Cf. Ybarra v. Illinois, 444 U.S. 85, 94
(1979) (holding that the authority to search commercial premises
does not include the authority to frisk all patrons of the
establishment for weapons absent "reasonable belief or suspicion
directed at the person to be frisked").
4
Given our resolution of these issues, we have no occasion to
inquire whether probable cause, exigent circumstances, and/or the
emergency doctrine provided additional justification for the
officers' actions.

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