United States v. Parker

United States Court of Appeals
For the First Circuit

No. 07-2776

UNITED STATES OF AMERICA,

Appellee,

v.

QUENTA PARKER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Boudin and Howard,

Circuit Judges.

William Gray Schaffer, by appointment of the court, for
appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney, with
whom Thomas P. Colantuono, United States Attorney, was on brief for
appellee.

November 26, 2008
 BOUDIN, Circuit Judge. On February 16, 2005, around eight

p.m. Sergeant Duval of the Somersworth, New Hampshire, Police

Department responded to a 911 call from the home of Carrie Davis.

Davis told Duval that she had been threatened by three men--two

black, one white--who had arrived at the apartment looking for her

boyfriend, Richard Post. When told that Post was not there, one of

the black males, known to Davis as "H," said that she knew what they

wanted and exposed a black firearm in his waistband. The white

male, whom she knew as "Jose," was holding a tool with a blade which

he smacked on his hand. Davis knew the other black male only as

"Q."

The three men, Post's sister told Duval, were looking for

Post because he had been dealing drugs, including crack cocaine, and

had "ripped off" his suppliers. Post's sister also gave Duval the

license plate number of the pickup truck the three men were using,

and Duval put out an alert for the truck. Shortly thereafter,

Officer Gould of the Dover, New Hampshire, Police Department located

the truck, still warm, at a Dover motel just over the line from

Somersworth. Duval and another Somersworth officer joined Gould and

another Dover officer at the motel.

The night clerk told the officers that three men matching

Davis' description had entered the motel shortly before and had gone

to Room 419, rented for cash by Kimberly Holland. The clerk also

said that Holland had previously rented rooms at the motel and that

-2-
the clerk suspected the group members of drug dealing. Arriving on

the fourth floor, the officers smelled marijuana coming from the

room. Their knock produced the sound of movement and whispering

inside the room, but no answer.

Gould then left to consult with a supervisor and Duval

knocked again; a black male, Anthony Burnett, opened the door. The

other men in the room were later identified as Quenta Parker, a

black male, and Juan Feliciano, a light-skinned Hispanic. Duval

questioned the men while waiting for Gould to return; this

questioning lasted approximately ten to fifteen minutes. Asked by

Duval about the incident at Davis' home, Burnett said that they had

been visiting a friend; the address he gave was quite near Davis'

house. In response to questions about the smell of marijuana,

Feliciano admitted that he had "smoked a joint, but it's all gone."

All refused the police request for consent to search the room.

Duval returned and one of the officers asked all four

occupants (the men and Holland) for identification and to step

outside the room. Duval then spoke privately to Holland, viewing

her as having authority to consent to a search. This discussion

lasted approximately ten minutes, during which Holland admitted to

smoking marijuana but asked to consult with her boyfriend, "Q"

(Parker). Parker then allegedly admitted that they had smoked

marijuana and that there was still some inside the room. But he

-3-
told Holland not to consent to a search, and she then denied

consent.

The occupants were held at the motel until around midnight

when a search warrant was finally secured; this was roughly three to

three and a half hours after the decision was made to seek the

warrant. A search of the room turned up a small safe--later found

marked with Parker's fingerprints--containing a black .32 caliber

handgun, two loaded magazines, a holster and ammunition pouch, two

knives, several pills, $3000 cash, and approximately 550 grams of

crack cocaine. More cash ($2750) was found in a leather jacket in

the room. Parker and the two other men were then formally arrested.

A federal grand jury indicted Parker for conspiring with

Burnett and others to distribute and to possess with intent to

distribute crack cocaine, 21 U.S.C. § 846 (2006), for possession

with intent to distribute crack cocaine, id. § 841(a)(1), and for

possession of a firearm in furtherance of a crime of drug

trafficking, 18 U.S.C. § 924(c)(1)(A) (2006). After an evidentiary

hearing, Parker's request to suppress the physical evidence was

denied. Parker then pled guilty on all counts, reserving his right

to appeal from the denial of his suppression motion, and was

sentenced to 195 months in prison.1

1
Parker was sentenced to 135 months for each of the two drug
counts (each carried a mandatory minimum term of ten years, see 21
U.S.C. §§ 841(a)(1), 846), to be served concurrently, and to sixty
months on the gun count to be served consecutively (the mandatory
minimum, see 18 U.S.C. § 924(c)(1)(A)).

-4-
 Parker's first claim on appeal is that requiring him to

leave the hotel room was a seizure in violation of the Fourth

Amendment, "the 'fruits' of which must be suppressed." The district

court's findings on the denial of a suppression motion are reviewed

for clear error, but its legal determinations are reviewed de novo.

United States v. Smith, 423 F.3d 25, 31 n.4 (1st Cir. 2005), cert.

denied, 126 S. Ct. 2287 (2006). Here, asking Parker to step outside

the room was not unlawful; nor, had it been unlawful, would the

items seized in the room be suppressed as forbidden fruit.

The complication in this case is not the initial knock nor

the preliminary inquiries, see United States v. Cephas, 254 F.3d

488, 493-94 (4th Cir. 2001), but rather the request to step outside

the room. Such a situation is at the crossroads of two different

Fourth Amendment doctrines--one governing ordinary arrests and brief

investigative stops; the other, entry into the home. There is some

tension between the approaches taken by the Supreme Court in these

situations.

Outside the home, the police can arrest without a warrant

anyone who they have probable cause to believe committed a felony,

see, e.g., Carroll v. United States, 267 U.S. 132, 156 (1925); see

also United States v. Watson, 423 U.S. 411 (1976); and, merely on

"reasonable suspicion," the police can temporarily detain an

individual for an investigative inquiry called a Terry stop, Terry

v. Ohio, 392 U.S. 1 (1968), whether the suspect is in a car or on

-5-
foot. United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975).

By contrast, the strong presumption is that a warrant

based on probable cause is required to justify police entrance into

the home or other private quarters, whether to seize property or

person. Payton v. New York, 445 U.S. 573, 588-90 (1980); Stoner v.

California, 376 U.S. 483, 490 (1964). The discrepancy in doctrine

as between street and home the is narrowed but not eliminated by

certain exceptions licensing entry without a warrant, e.g., United

States v. Samboy, 433 F.3d 154, 158 (1st Cir. 2005), cert. denied,

126 S. Ct. 1926 (2006) (exigent circumstances); United States v.

Luciano, 329 F.3d 1, 7 (1st Cir. 2003) (consent).

The closest precedent in our circuit is United States v.

Beaudoin, 362 F.3d 60, 69-70 (1st Cir.), cert. denied, 543 U.S. 979

(2004), vacated on other grounds sub. nom. Champagne v. United

States, 543 U.S. 1102 (2005). In Beaudoin, we held (albeit by a

divided vote) that no warrant was required for a reasonable police

request that the suspect step out of his hotel room. We deemed the

intrusion on privacy of such a direction to be real but modest,

especially when weighed against the risk to police officers, and

stressed the analogy to the Terry stop cases allowing investigative

stops on the street.

Here, as in Beaudoin, the men inside the room were

reasonably suspected of involvement in a felony (the threatening of

Davis) and of possessing a gun. Indeed, although the crime at issue

-6-
was less serious than in Beaudoin, the evidence pointing to Parker's

involvement in it and the likelihood of his having a weapon were

much stronger, as in Beaudoin police were acting merely on an

anonymous tip. Id. at 62. Summoning Parker and the other men to

step outside the hotel room was thus justified as a means of

protecting the police while they pursued the investigation and of

securing the weapon and other possible evidence when they decided to

seek a warrant.

Having the men outside the room, the police could perhaps

have arrested them on the spot. Davis' statement provided probable

cause, not mere suspicion, to arrest the men who had threatened her;

and the tracing of the truck to the motel and the desk clerk's

identification point to the men in Room 419 as the culprits. But

absent exigent circumstances, Samboy, 433 F.3d at 158, or consent,

Luciano, 329 F.3d at 7, the police still needed a warrant to search

the room for physical evidence. So, reasonably enough they awaited

the warrant and the confirmation provided by the gun, drugs and

money before making formal arrests.

Finally, even if Parker had been unlawfully seized, the

later seizure of the safe would still not have been suppressible

"fruits" of Parker's seizure. The warrant already in contemplation

would inevitably have led to the safe being seized and searched, Nix

v. Williams, 467 U.S. 431, 444, 446 (1984), there being probable

cause for the warrant without regard to anything said by Parker.

-7-
United States v. Ford, 22 F.3d 374, 379-80 (1st Cir.), cert. denied,

513 U.S. 900 (1994). While awaiting the warrant the police were

entitled to prevent the safe's removal. Illinois v. MacArthur, 531

U.S. 326, 331-33 (2001).

Parker next argues that, quite apart from the seizure,

"[t]he failure to give [him and Holland] the warnings set forth in

Miranda v. Arizona[, 384 U.S. 436 (1966)], prior to interrogating

them was unlawful, and thus requires that the information they

provided . . . as well as the 'fruits' thereof, be suppressed." He

then contests the scope and duration of the initial encounter and

the voluntariness of anything he said.

The questioning of Parker was not unlawful. Parker's

admission to smoking a joint of marijuana occurred early in the

period of detention and, under the Terry line of cases, it was not

the result of a custodial "interrogation" of the kind requiring

Miranda protection. United States v. Trueber, 238 F.3d 79, 93 (1st

Cir. 2001). Trueber holds that Miranda warnings are not required

for "a brief period of detention" during which the police seek "by

means of a moderate number of questions to determine [a suspect's]

identity and to obtain information confirming or dispelling their

suspicions." Id.

In this case, the motel was a neutral environment, there

was no testimony that Parker was physically restrained, and the

questioning was limited, being prompted in part by Parker's

-8-
girlfriend, who insisted that Parker be consulted before consent to

search could be given. See generally United States v. Nishnianidze,

342 F.3d 6, 13 (1st Cir. 2003), cert. denied, 540 U.S. 1132 (2004)

(listing relevant factors in inquiry). Whether at some point the

stop matured into a de facto arrest could perhaps be debated, but no

further admission was secured from Parker.

As it happens, neither Parker's admission nor the smell of

marijuana was necessary to the warrant, which was amply supported by

probable cause based on the threatening of Davis and the tracing of

the truck to the motel. And, under governing Supreme Court

precedent, the physical fruits of an otherwise voluntary statement

are admissible against a defendant even if a Miranda warning was

wrongly omitted. United States v. Patane, 542 U.S. 630, 641-42

(2004). Miranda aside, Parker's statement was not "involuntary"

under conventional standards.

Parker also argues that the search warrant was

impermissibly broad because it allowed police to search for

"weapon[s]" and "illicit drugs," but that there was only probable

cause to support a search for marijuana and a single gun. In fact,

Davis had said that two different potential weapons were displayed;

the third man could have had another weapon. In addition to the

marijuana smoke, there was reason to suspect that the male occupants

might be connected with unspecified illegal drugs. So there was

-9-
 reason here to suppose that other weapons and drugs might well be

found.

The warrant was particularized--guns and drugs are

certainly a defined class--and far broader classes have been

allowed.2 Further, specifying weapons and drugs rather than a gun

and marijuana can hardly have enlarged the intrusiveness of the

search. Indeed, had the warrant referred only to a gun and

marijuana, the officers would have been entitled to seize other guns

and illegal drugs as suspected contraband if found in plain view in

the course of the narrower search. See Horton v. California, 496

U.S. 128, 135 (1990).

Attacking his sentence, Parker says that he should not

have received a consecutive five year mandatory minimum for carrying

or using the gun because the statute so providing, 18 U.S.C. §

924(c)(1)(A), contains a qualifier that he says applies to him.

Although he did not preserve the argument in the district court or

present it to us in his briefs, it is useful (and does not prejudice

the government) for us to address the claim on the merits.

The relevant part of section 924(c) states:

2
See, e.g., United States v. Upham, 168 F.3d 532, 535-36 (1st
Cir.), cert. denied, 527 U.S. 1011 (1999) (warrant allowing search of
all computer software, hardware, computer disks, or disk drives
upheld); United States v. Morris, 977 F.2d 677, 680-81 (1st Cir.
1992), cert. denied, 507 U.S. 988 (1993) (upholding part of warrant
authorizing search for "all that is relating [sic] to drugs and
narcotics").

-10-
 Except to the extent that a greater minimum
sentence is otherwise provided by this
subsection or by any other provision of law,
any person who, during and in relation to any
crime of violence or drug trafficking crime . .
. uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime--

(i) be sentenced to a term of
imprisonment of not less than 5 years . . . .

Subsections (ii) et seq. provide longer consecutive sentences for

brandishing or discharge of the gun or the use of certain especially

dangerous weapons like automatic weapons.

Parker's argument, in expanded form, goes as follows. The

"except clause" makes the five year consecutive sentence

inapplicable where "a greater minimum sentence is otherwise provided

by this subsection or by any other provision of law"; Parker, by

virtue of the amount of drugs recovered, was already subject to a

mandatory minimum ten year sentence based on the drug convictions

(actually, two mandatory minimums, served concurrently, see note 1,

above); and therefore, the consecutive five year sentence is not

applicable to him.

Parker's reading is suspect on its face because section

924(c)(1)(A)'s supplementary provision (quoted above)--by providing

a five year sentence "in addition to the punishment" for the

predicate crime--self-evidently intends that one who carries a

firearm in connection with a serious drug offense should serve a

-11-
 further consecutive sentence of five years. Further, his reading

would create very odd outcomes.3 A more careful reading defeats

Parker's suggestion that the statutory language compels such

results.

The except clause in this case ("Except to the extent that

a greater minimum sentence is otherwise provided by this subsection

or by any other provision of law") does not say "a greater minimum

sentence" for what; yet it has to have some understood referent to

be intelligible. Here, the referent could be "any other crime

related to this case" or "the underlying drug crime or crime of

violence." Either of those readings would help Parker; but they,

like any other reading of the phrase, require reading into the

clause a referent not literally expressed. Compare United States v.

Rodriguez, 128 S. Ct. 1783 (2008).

An alternative (and more sensible) referent is obvious.

Section 924(c) dictates an additional minimum sentence for an

underlying offense because of the presence of the firearm; thus, if

"a greater minimum sentence is otherwise provided" on account of the

firearm, then under the "except clause" that greater minimum might

supercede the otherwise applicable section 924(c) adjustment.

3
For example, Parker would avoid the extra five years here
because the ten year drug sentence stemmed from a mandatory
provision; but he would serve the five years if given a ten year
sentence--or even a higher one--for a drug offense or violent crime
based not on a mandatory minimum provision but merely on the
guidelines and trial judge's exercise of judgment.

-12-
 Conceivably, Congress wished to avoid a double increment for the

same firearm, so this is at least a plausible reading, while

Parker's suggested readings are implausible based on the statutory

purpose. See generally Caron v. United States, 524 U.S. 308, 315-16

(1998).

That very double-counting danger was arguably present in

United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), on which

Parker principally relies. There the defendant was convicted and

sentenced for Hobbs Act robbery, 18 U.S.C. § 1951, and also subject

to a fifteen year mandatory minimum sentence because he possessed a

firearm in the course of the robbery and had three prior convictions

for violent felonies or serious drug offenses. 18 U.S.C. §§

922(g)(1), 924(e)(1). Application of section 924(c), which the

Whitley court disallowed, would have imposed a further ten year

consecutive sentence for discharge of the same gun in the same

robbery. 529 F.3d at 151-53, 158.

Because double counting was threatened, Whitley is easily

distinguishable from our own case, and the remaining circuit

precedents are adverse to Parker: other circuits have rejected any

reading of the "except" clause that would reach our case and,

indeed, some of the circuits would squarely reject Whitley.4 We

4
United States v. Jolivette, 257 F.3d 581, 586-87 (6th Cir.
2001); United States v. Studifin, 240 F.3d 415, 423-24 (4th Cir.
2001); United States v. Alaniz, 235 F.3d 386, 386 (8th Cir. 2000),
cert. denied, 533 U.S. 911 (2001); see also United States v. Collins,
205 F. App'x 196 (5th Cir. 2006) (unpublished) (per curiam), cert.

-13-
 need not decide how the Whitley problem would be resolved in this

circuit: it is enough that no double counting of the gun is

presented here. Cessante ratione legis, cessat ipsa lex.

Affirmed.

denied, 127 S. Ct. 3063 (2007); United States v. Baldwin, 41 F. App'x
713, 715 (6th Cir. 2002) (unpublished).

-14-