United States v. James ( 2020 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19-1244
UNITED STATES OF AMERICA,
Appellee,
v.
NERA JAMES, a/k/a King,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Clifford B. Strike for appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.
February 20, 2020

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Defendant Nera James pleaded
guilty to two counts of possession with intent to distribute
furanyl fentanyl, 21 U.S.C. § 841(a)(1), but reserved his right to
appeal the district court's denials of two motions to suppress
evidence. He now appeals those denials, as well as the district
court's application of a firearms sentence enhancement under
U.S.S.G. § 2D1.1(b)(1). We affirm.
I
In late 2016, officers affiliated with the Maine Drug
Enforcement Agency and the Auburn and Lewiston Police Departments
began receiving information that a man, nicknamed "King," was
distributing fentanyl in Lewiston and Auburn. Sources reported
that King resided at 91-93 Walnut Street in Lewiston, was known to
carry drugs on his person, and sold fentanyl in the common areas
of apartment buildings near Walnut Street. They described King as
a black male in his thirties with distinctive "blemishes" on his
face. On December 19, 2016, Detective Nicholas Gagnon observed
someone matching King's physical description enter the hallway of
a Lewiston apartment building, only to leave abruptly after seeing
the officer. At the time, Detective Gagnon was conversing with a
known drug addict, who confirmed that the departed person was a
fentanyl dealer named King.
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The next day, Detective Gagnon and several other
officers were driving near 91-93 Walnut Street when they observed
a man walking in the middle of the road. Concerned that the
pedestrian was causing a hazard, the officers pulled closer to him
and then realized, based on his physical features, that he
resembled the dealer their sources had described and Detective
Gagnon had earlier encountered, called King. The officers got out
and asked the man for identification. He stated that his name was
Nera James. The officers patted James down and enquired about the
contents of his shopping bag. Detective Gagnon told James that it
would not be "a big deal" if the bag contained marijuana. James
stated that his bag did in fact contain marijuana. Detective
Gagnon grabbed the bag and found numerous baggies of suspected
heroin or fentanyl inside. The officers arrested James and
administered a warning under Miranda v. Arizona, 384 U.S. 436, 444
(1966). Up to the point of arrest, the encounter lasted no more
than five minutes.
On February 6, 2017, James posted bail subject to several
conditions, including submission to "searches of [his] person,
vehicle and residence . . . at any time without articulable
suspicion or probable cause." Not long after, Detective Gagnon
and Corporal Brian Beauparlant learned from several sources that
James may have resumed trafficking in drugs. On May 3, 2017,
Detective Gagnon, Corporal Beauparlant, and several other officers
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performed a bail compliance check for James. After securing James,
they searched his apartment, porch, and an unlocked "shed" or
closet within the building near his apartment and rented as
appurtenant to it, though physically separate from it and
accessible from the porch area. Inside the shed, they found a
sock containing live ammunition, a stolen shotgun, two handguns,
a bag containing 600 baggies of fentanyl, and other drugs.
James filed two motions to suppress, respectively, the
evidence discovered during his December 20, 2016 roadside
encounter and the May 3, 2017 search. After the district court
had denied both motions, James entered the conditional guilty plea.
At sentencing, he challenged the district court's application of
a two-level guideline enhancement under U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm during the commission of a drug-trafficking
crime. The district court applied the enhancement and imposed a
67-month sentence.
II
James's first assignment of error goes to the district
court's denial of his motion to declare the roadway stop and
questioning an unlawful seizure of his person under the Fourth and
Fourteenth Amendments, and to suppress all resulting evidence as
fruit of the violation. There was, however, no error.
The circumstances lend themselves to more than one
analysis, and the trial court considered three alternatives. We
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need to review only one: that the stop was lawful under the
standard of Terry v. Ohio, 392 U.S. 1 (1968). "[I]t is well-
settled that, based merely on a reasonable and articulable
suspicion, a police officer may make a brief stop or 'seizure' of
an individual to investigate suspected past or present criminal
activity." United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.
1996). Here, the evidence amply supports the articulable suspicion
that James was the individual who had recently been selling
fentanyl in the area in violation of 21 U.S.C. § 841(a)(1), and
was continuing to engage in that criminal behavior.
As noted before, several of the officers in the car that
evening had been told by drug users known to them that fentanyl
was being distributed by a black man in his thirties showing a
facial skin abnormality like the one that James displayed. The
street where James was walking was near the places of the
encounters the users had described. To clinch the issue of
reasonable suspicion, Detective Gagnon recognized James after
having seen him recently as he approached the scene of an
anticipated drug sale. The police were accordingly reasonable
beyond the point of suspicion in believing that James was engaged
in local drug trafficking, and under Terry were justified in
detaining him to enquire about his activities.
While a Terry stop must be limited to reasonable
circumstances including duration, see United States v. Rasberry,
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882 F.3d 241, 248 (1st Cir. 2018), the evidence here was that the
conversation was no longer than about five minutes before suspicion
was confirmed to the point of probable cause to arrest for
possession of illegal drugs in the officers' presence. Once the
conversation had moved from the ostensible subject of the State
law illegality of walking in the traveled roadway,1 and had come
to the point of enquiring about the contents of the bag James was
carrying, James admitted there was marijuana inside. The officers
then had cause to conclude that James was possessing a substance
in violation of then-existing State law, and the encounter thus
passed from Terry detention to involuntary custody for commission
of a crime in the officers' presence. See United States v. Brown,
500 F.3d 48, 56 (1st Cir. 2007).
Duration aside, there was no evidence that might have a
bearing on James's claim that the behavior of the officers
collectively was unreasonable as being oppressive beyond what
Terry would allow.2 Indeed, the only particular specification of
1"In determining whether an officer had reasonable suspicion
to justify a Terry stop . . ., the officer's subjective motives do
not enter into the decisional calculus." United States v. Romain,
393 F.3d 63, 74 (1st Cir. 2004) (citing Whren v. United States,
517 U.S. 806, 812 (1996)). What matters is "the objective
significance of the particular facts under all the circumstances."
Id. (quoting United States v. Woodrum, 202 F.3d 1, 7 (1st Cir.
2000)).
2There is no claim that the police improperly induced James
to admit to the marijuana as the result of a suggestion that
marijuana possession would not be "a big deal."
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unreasonableness said to affect the admissibility of the
government's trial evidence goes to James's statements made before
receiving Miranda warnings. Add. 12. But no warning was in order
until James was in custody, as distinct from Terry detention,
United States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005), and that
point was not reached prior to the marijuana admission. No
statement made by James thereafter was admitted that had not been
preceded by the warnings, and James offers no argument that any
post-Miranda statement was inadmissible as having somehow been
involuntary despite the warning.
III
The second error James claims was the denial of his
motion to suppress the evidence of drugs and firearms found in the
search of the so-called "shed," the storage area within the
apartment building adjacent to James’s own apartment and rented to
James as appurtenant to it but accessible from the porch area. If
his claim is sound, the Sentencing Guidelines enhancement for
possession of a "dangerous weapon" would be without foundation.
U.S.S.G. § 2D1.1(b)(1). We find no such error, however.
The officers searched James's rented apartment and the
shed on the strength of the provision in James's state bail bond
requiring him to "submit to searches" of his "person, vehicle and
residence . . . at any time without articulable suspicion or
probable cause." James now says that the waiver of objection was
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unreasonable as applied to his circumstances because the word
"residence" was not meant to include the separate shed adjacent to
the apartment and rented as appurtenant to it. The trial court
concluded that "in the absence of any developed argument on the
point by Defendant," Add. 15, the shed was a part of the residence
within the bail terms. We see no plain error in so concluding, or
in the trial court's further holding that on a contrary assumption
James would have had no sustainable expectation of privacy
necessary to give standing to raise a Fourth Amendment suppression
claim. See United States v. Battle, 637 F.3d 44, 48 (1st Cir.
2011). James contends that the search violated the Fourth
Amendment rights of the co-tenants in his apartment, who also had
possessory interests in the shed, but a defendant cannot suppress
the fruits of a search based on a violation of the Fourth Amendment
rights of others. See Alderman v. United States, 394 U.S. 165,
174 (1969).
IV
Finally, James argues that the guns discovered in his
shed do not implicate the Guidelines enhancement for possession of
a dangerous weapon, like a firearm, during the course of a drug
trafficking crime, U.S.S.G. § 2D1.1(b)(1). But the commentary to
U.S.S.G. § 2D1.1(b)(1) directs that presence of a weapon with other
indicia of drug activity is sufficient for the enhancement to
apply, "unless it is clearly improbable that the weapon was
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connected with the offense." Here, on the date of the search, the
three guns seized were stored directly next to the drugs supporting
James's guilt of possessing prohibited drugs with intent to
distribute them. Given the obvious association between the guns
and the drugs, see United States v. Corcimiglia, 967 F.2d 724, 727
(1st Cir. 1992), and the lack of evidence to the contrary in this
case, we find no clear error in the trial court's conclusion that
the guns were "part and parcel of the drug operation." Add. 23.
Nor can James's claim that the guns belonged to one of his co-
conspirators alter this result; even if that were true, the firearm
enhancement applies when "it was reasonably foreseeable to the
defendant that firearms would be possessed by others during the
conspiracy." United States v. Burgos-Figueroa, 778 F.3d 319, 321
(1st Cir. 2015).
Affirmed.
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