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
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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
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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)).
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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
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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
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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.
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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
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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
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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").
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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
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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.
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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.
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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).
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