United States v. Adams ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1465
UNITED STATES OF AMERICA,
Appellee,
v.
ERICK LEVAR ADAMS,
a/k/a X, a/k/a DEUCE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Mary June Ciresi for appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.
August 18, 2020
SELYA, Circuit Judge. Under the Constitution, a warrant
authorizing the search of property cannot issue except upon a
showing of probable cause. See U.S. Const. amend. IV. Under this
standard, such a warrant may issue only upon a showing that a crime
has been committed and that evidence of that crime is likely to be
found by a search of the designated property. See United States
v. Clark, 685 F.3d 72, 78 (1st Cir. 2012). In the case at hand,
defendant-appellant Erick Levar Adams, convicted of drug-
trafficking and firearms offenses, challenges the district court's
refusal to suppress the avails of a number of warrant-backed
searches. Concluding, as we do, that each of the challenged
warrants issued upon a sufficient showing of probable cause and
that the defendant's other claims of error lack bite, we affirm
his conviction and sentence.
I. BACKGROUND
We rehearse the facts as supportably found by the
district court following an omnibus hearing on several of the
defendant's motions to suppress. When appropriate, we supplement
these findings with uncontested facts drawn from the broader
record. See United States v. Dancy, 640 F.3d 455, 458 (1st Cir.
2011).
In December of 2014, two state police troopers stopped
a rental car being driven by the defendant near Sanford, Maine.
After learning that the defendant was driving without a valid
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license, the troopers arrested him. A post-arrest search of the
defendant's person revealed that he was carrying approximately
$500 in cash.
During the course of the stop, Special Agent Randall
Medeiros of the Maine Drug Enforcement Agency (MDEA) was summoned
to the scene. The officers then conducted two separate canine
sniffs directed at the car. Both dogs alerted to the presence of
drugs in the passenger compartment. An ensuing search of the
passenger compartment and a backpack found in the backseat of the
car disclosed three cellphones, the cut corner of a plastic bag
(resembling a "Dominican tie" commonly used to package drugs), and
two loose screws (suggesting that parts of the rental car had been
disassembled, perhaps to hide drugs).
The car was towed to a police barracks, and a search
warrant was procured. The search revealed two additional
cellphones but no contraband. The defendant was allowed to leave
but — approximately one month later — Medeiros obtained search
warrants for the contents of the five cellphones.
The MDEA was not the only law enforcement agency
interested in the defendant. Roughly two months after the 2014
traffic stop, police officers in Connecticut obtained a search
warrant for an apartment rented by the defendant. During the
ensuing search, officers found (among other things) large
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quantities of cocaine and heroin, along with drug-packaging
accoutrements.
Meanwhile, the MDEA continued its investigation of the
defendant's activities. Several confidential informants told the
authorities that the defendant and his associates were dealing
drugs in and around Biddeford, Maine. Agents proceeded to arrange
a number of controlled drug buys from the defendant's associates
and coordinated one buy from the defendant himself. The Maine
probe reached a climax in January of 2016 when agents secured
arrest warrants for the defendant and one of his associates,
pinpointed their location at a hotel in Saco, and secured a no-
knock search warrant for the particular hotel room in which the
two men were staying. Prior to executing the arrest warrant,
agents observed the defendant leave the hotel and retrieve a black
bag from a parked blue Volkswagen. Later — when executing the
arrest warrants — the officers observed drugs and drug
paraphernalia scattered in plain view throughout the hotel room.
They also saw drugs in the bag the defendant had retrieved from
the blue Volkswagen.
Based on these observations, the officers obtained an
additional warrant authorizing searches of both the hotel room and
the Volkswagen. A thorough search of the hotel room unearthed
substantial quantities of heroin, cocaine, and cocaine base (crack
cocaine), together with approximately $27,000 in cash.
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One thing sometimes leads to another, and the Volkswagen
search turned up paperwork for a storage locker in the name of the
girlfriend of one of the defendant's associates. The agents
visited the storage facility and viewed video footage depicting
the man who had been sharing the hotel room with the defendant
driving the Volkswagen and entering the storage unit about twenty-
four hours earlier. Once a canine sniff produced a positive alert
for the presence of narcotics inside the storage locker, another
search warrant was obtained. This search yielded firearms and
additional drugs.
In due season, a federal grand jury sitting in the
District of Maine charged the defendant (in a superseding
indictment) in five counts. Only two counts are relevant for
present purposes: count 1 charged the defendant with conspiracy
to possess with intent to distribute and to distribute at least
280 grams of cocaine base and unspecified quantities of other
drugs, see 21 U.S.C. §§ 841(a)(1), 846, and count 4 charged him
with possession of a firearm by a felon, see 18 U.S.C.
§§ 922(g)(1), 924(e). The defendant initially maintained his
innocence and filed a flurry of motions to suppress evidence
stemming from the seizures and searches of the cellphones, the
hotel room, and the storage locker. After an omnibus evidentiary
hearing, the district court denied all of the motions. The
defendant subsequently moved to suppress evidence gleaned from the
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search of the Connecticut apartment, and the court denied this
motion on the papers.
Jury selection was set to begin on June 5, 2017. A few
days before, the defendant entered a conditional guilty plea to
counts 1 and 4, see Fed. R. Crim. P. 11(a)(2), reserving the right
to appeal the district court's denials of his suppression motions.
Specifically, his conditional plea allowed him only "to have an
appellate court review" the district "court's decisions dated
November 29, 2016 and May 12, 2017 on [his] Motions to Suppress."
In exchange, the government agreed to dismiss the remaining charges
and to recommend a sentence of between 180 and 300 months. The
district court accepted this binding plea agreement.
A little under one month after the change-of-plea
hearing, the defendant moved to retract his guilty plea. Following
a further hearing, the district court denied the motion. Some
months later, the defendant moved unsuccessfully for
reconsideration of the earlier denials of the plethora of
suppression motions. At the disposition hearing, the court
sentenced the defendant to a 300-month term of immurement. This
timely appeal followed.
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II. ANALYSIS
We subdivide our discussion of the defendant's
asseverational array into four segments.1 First, we treat with
the 2014 traffic stop. Second, we deal sequentially with the
defendant's attacks on the cellphone warrants, the warrant
authorizing the search of the Connecticut apartment, the no-knock
warrant, and the storage locker warrant.2 Third, we summarily
dispose of the defendant's vain attempt to secure review of the
district court's denial of his motion to reconsider its earlier
suppression rulings. Fourth, we train the lens of our inquiry on
the district court's denial of the defendant's motion to withdraw
his guilty plea.
A. The Traffic Stop.
We start with the defendant's remonstrances about the
2014 traffic stop that led to the seizure of the five cellphones.
Although we start there, these remonstrances soon encounter
1 We note that the defendant has augmented his counsel's
briefing with pro se briefing. For simplicity's sake, we address
the preserved and properly developed arguments contained in these
various briefs without attributing particular arguments to
particular briefs. Any claims of error not addressed in this
opinion are either insufficiently developed, patently meritless,
or both, and all such claims are rejected without further
elaboration.
2 Each of the challenged warrants was issued following the
submission of a warrant application. In turn, each application
incorporated a supporting affidavit or affidavits executed by one
or more law enforcement officers. We refer throughout to these
affidavits without pausing to identify the particular affiant(s).
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insurmountable obstacles. The defendant never raised any of them
in his myriad motions to suppress and, in all events, they are
foreclosed by the terms of his conditional plea.
Federal Rule of Criminal Procedure 11(a)(2) allows a
defendant, "[w]ith the consent of the court and the government,"
to enter a conditional guilty plea "reserving in writing the
right to have an appellate court review an adverse determination
of a specified pretrial motion." A primary purpose of this rule
is to "'identify precisely what pretrial issues have been
preserved for appellate review,' and to husband scarce judicial
resources by permitting a defendant fully to litigate hoarded
issues while at the same time lessening the burden on busy
district courts and sparing the sovereign the expense of trial."
United States v. Caraballo-Cruz, 52 F.3d 390, 392 (1st Cir.
1995) (quoting Fed. R. Crim. P. 11 advisory committee's note to
1983 amendment). Virtually any and all nonjurisdictional issues
not explicitly preserved for appeal in the conditional plea
agreement — and certainly all Fourth Amendment suppression
issues — are deemed waived.3 See United States v. Anderson, 374
F.3d 955, 958 (10th Cir. 2004); United States v. Ramos, 961 F.2d
3We say "[v]irtually" because the Supreme Court has made
clear that a guilty plea does not waive a subsequent challenge to
"the Government's power to 'constitutionally prosecute'" the
defendant. Class v. United States, 138 S. Ct. 798, 805 (2018)
(quoting United States v. Broce, 488 U.S. 563, 575 (1989)).
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1003, 1005-06 (1st Cir. 1992), overruled on other grounds by
United States v. Caron, 77 F.3d 1 (1st Cir. 1996) (en banc);
United States v. Simmons, 763 F.2d 529, 533 (2d Cir. 1985).
Under the terms of his conditional plea, the defendant
reserved the right to appeal only the district court's two
suppression rulings, namely, the omnibus order entered on
November 29, 2016, and the order entered on May 12, 2017 (which
denied the motion to suppress the fruits of the Connecticut
apartment search). Neither of those rulings was directed to the
validity of the traffic stop or the actions that followed at the
site of the stop. On its face, then, the conditional plea did
not reserve any right to challenge the traffic stop on appeal.
To be sure, the district court's first suppression
ruling (November 29, 2016) touched on the traffic stop. But
this was purely by way of background. For instance, the court
memorialized that "there [was] no issue concerning whether the
officers unreasonably prolonged the stop to effectuate the dog
sniffs" since the defendant had already been arrested at the
time of the sniffs. So, too, the court wrote that the roadside
search of the defendant's vehicle and backpack were justified
by the dogs' positive alerts for the presence of contraband and
by the automobile exception to the warrant requirement. See,
e.g., Carroll v. United States, 267 U.S. 132, 153-56 (1925);
United States v. Maldonado, 356 F.3d 130, 137 (1st Cir. 2004).
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We conclude that the court's references to these
matters are plainly insufficient to reserve the traffic stop for
appeal when the motions to suppress never challenged that stop
and the defendant himself never raised any such challenge during
the suppression hearing. This conclusion is strengthened by the
fact that the defendant, during the lead-up to the omnibus
suppression hearing, never argued that the traffic stop was
unsupported by reasonable suspicion or probable cause; that the
stop was unlawfully prolonged; or that the canine sniffs and
subsequent search of the car were unlawful. And to remove all
doubt, the district court stated unequivocally in its omnibus
suppression ruling that the defendant did "not appear to challenge
the basis for the initial stop of the vehicle," and the defendant's
subsequent filings did not contradict this statement.
It is a commonsense proposition that defendants who
choose to enter conditional guilty pleas must "use care and
precision in framing the issues to be preserved for appeal."
Simmons, 763 F.2d at 533 (quoting United States v. Pinto-Mejia,
720 F.2d 248, 256 (2d Cir. 1983)). The natural corollary of
this proposition is that conditional plea agreements are to be
construed according to their tenor. See Ramos, 961 F.2d at
1005-06; Simmons, 763 F.2d at 533. Here, the conditional plea
agreement, fairly read, does not encompass the traffic-stop
claims that the defendant now seeks to pursue. Consequently,
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those claims have been waived, and the defendant is foreclosed
from raising them in this appeal. See Anderson, 374 F.3d at 958(explaining that entry of conditional plea waives all
suppression arguments not specifically preserved for appeal);
cf. United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991)
("[A]rguments not seasonably addressed to the trial court may
not be raised for the first time in an appellate venue.").
B. The Warrants.
The defendant contends that a constellation of search
warrants used to gather evidence against him were unsupported by
probable cause or were otherwise infirm. The contested warrants
authorized, respectively, searches of the five seized cellphones,
a search of the defendant's Connecticut apartment, an entry into
the defendant's hotel room, and a search of the storage locker.
Before turning to the warrants, we offer a handy primer
on some matters of general application. When reviewing a district
court's disposition of a motion to suppress, we screen the court's
factual findings for clear error and assay its ultimate conclusions
about the existence of probable cause de novo. See United States
v. Almonte-Báez, 857 F.3d 27, 31 (1st Cir. 2017). In conducting
this tamisage, we construe the record in the light most congenial
to the district court's ruling and will affirm the court's denial
of a suppression motion "as long as that denial is supported by
any particularized and objectively reasonable view of the
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evidence." United States v. Tanguay, 811 F.3d 78, 81 (1st Cir.
2016).
As relevant here, a finding of probable cause is
righteous "when the totality of the circumstances create 'a fair
probability that contraband or evidence of a crime will be found
in a particular place.'" Almonte-Báez, 857 F.3d at 31 (quoting
United States v. Tanguay, 787 F.3d 44, 50 (1st Cir. 2015)); see
United States v. Coombs, 857 F.3d 439, 446 (1st Cir. 2017). The
probable cause standard "is not a high bar." Kaley v. United
States, 571 U.S. 320, 338 (2014). It demands only "the kind of
'fair probability' on which 'reasonable and prudent [people,] not
legal technicians, act.'" Florida v. Harris, 568 U.S. 237, 244
(2013) (alteration in original) (quoting Illinois v. Gates, 462
U.S. 213, 231, 238 (1983)).
A showing of probable cause may be premised on either
direct or circumstantial evidence or some combination of the two.
See Gates, 462 U.S. at 238; Clark, 685 F.3d at 78. Such a showing
leaves ample room for reasonable inferences based on common
experience: an affidavit submitted to show probable cause need
not point to some straight-line connection but, rather, may rely
on the affiant's connecting of a series of dots in a commonsense
way. See Harris, 568 U.S. at 244.
It is against this backdrop that we consider the
defendant's challenges to the sundry warrants.
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1. The Cellphone Warrants. We start with the warrants
authorizing searches of the five cellphones recovered in the wake
of the traffic stop. As might be expected, the affidavits
underpinning the five cellphone warrants closely resemble one
another, and we discuss them in the aggregate. The defendant's
criticism of these warrants focuses on Medeiros's statement,
contained in the affidavits annexed to the warrant application,
that the defendant had "been observed at several known drug
locations in the Southern Maine area over the course of several
months." The defendant suggests that this statement lacked any
factual context or indicia of reliability. He adds that when this
"unsubstantiated assertion" is removed from the probable cause
equation, the remaining information is too meager to support a
finding of probable cause to believe that the phones were likely
to contain evidence of drug trafficking.
It is true, of course, that an affidavit submitted in
support of a warrant application must demonstrate probable cause
"in some trustworthy fashion." United States v. Nocella, 849 F.2d
33, 39 (1st Cir. 1988) (quoting United States v. Aguirre, 839 F.2d
854, 857 (1st Cir. 1988)). Similarly, if data points limned in an
affidavit derive from confidential informants, a reviewing court
must take into account "the veracity and reliability of [those]
informants, and the basis of their knowledge." Id. Here, however,
the disputed statement is not attributed to information gleaned
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from an informant. And in our judgment, a neutral magistrate would
be fully justified in deeming the sworn statements of an
experienced MDEA agent, presumably based on his knowledge of the
ongoing investigation, as trustworthy. After all, "[w]e have,
with a regularity bordering on the echolalic, endorsed the concept
that a law enforcement officer's training and experience may yield
insights that support a probable cause determination." United
States v. Floyd, 740 F.3d 22, 35 (1st Cir. 2014).
In any event, we need not probe this point too deeply.
Even if we excise the disputed statement from the probable cause
calculus, the remaining content of each affidavit amply supported
a finding of probable cause. The affidavits rehearsed the details
of the traffic stop, including the $500 found on the defendant's
person in small-denomination bills; the two positive dog sniffs;
and the items found as a result of the traffic stop, including the
five cellphones, the distinctively tied plastic bag, and the loose
screws. In addition, the affidavits contained Medeiros's
averments that drug traffickers often use multiple cellphones to
arrange transactions, package drugs in plastic bags using the
"Dominican tie" technique, and stow drugs in a vehicle's "natural
voids" accessible only after the removal of plastic molding held
in place by "screws or clips."
Direct evidence is not necessary to ground a probable
cause determination where, as here, the import of circumstantial
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evidence is obvious. See United States v. Gonzalez-Arias, 946
F.3d 17, 24 (1st Cir. 2019), cert. denied, __ S. Ct. __ (2020);
United States v. Edmiston, 46 F.3d 786, 789 (8th Cir. 1995).
Notwithstanding that the car itself was not found to contain a
detectable quantity of drugs, all of the enumerated facts strongly
suggested drug-trafficking activities. See, e.g., Harris, 568
U.S. at 245-46, 246 n.2 (noting that police dogs alert to odor,
but not necessarily presence, of drugs and that such alerts
establish probable cause "that either drugs or evidence of a drug
crime . . . will be found"). Taken in their totality, the inference
that they suggest is inescapable.
To cinch the matter, the affidavit also recounted that
the defendant had been arrested twice before, resulting in
narcotics charges. Both arrests occurred in Rhode Island in 2013,
and both involved facts strikingly similar to the 2014 traffic
stop in Maine. In each instance, the defendant was operating a
rental car, driving without a valid license, and found in
possession of multiple cellphones and significant amounts of cash.
These earlier arrests — in each of which several ounces of crack
cocaine was seized — combined with the evidence harvested from the
2014 traffic stop gave rise to probable cause to believe that the
defendant had been, and continued to be, involved in a drug-
trafficking enterprise.
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The defendant has a fallback position. He argues that
the passage of approximately one month between the 2014 traffic
stop and the issuance of the search warrants for the five
cellphones undermined any finding of probable cause since "[n]o
additional information" suggestive of drug trafficking emerged in
the interim. This argument lacks force. We have "repeatedly
refused to assess an affidavit's staleness by counting the number
of days between the events described in the affidavit and a
warrant's issuance, as a merchant would beads on an abacus."
United States v. Tiem Trinh, 665 F.3d 1, 13 (1st Cir. 2011).
Instead, we examine a variety of factors bearing on staleness,
such as "the nature of the information [in the affidavit], the
nature and characteristics of the suspected criminal activity, and
the likely endurance of the information." Id. at 13-14 (quoting
United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir.
2008)). As we already have explained, the evidence garnered from
the 2014 traffic stop, coupled with the known details of the
defendant's 2013 arrests, gave rise to probable cause to believe
that he had been engaged in a continuous course of drug-trafficking
and that the multiple cellphones recovered from the traffic stop
were tools of the trade and, thus, likely to contain evidence of
criminal activity. The passage of approximately one month between
the seizure of the phones and the issuance of the warrant in no
way diminished the likelihood that the phones would contain
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incriminating evidence. Cf. United States v. Schaefer, 87 F.3d
562, 568 (1st Cir. 1996) (explaining that "drug conspiracies tend
to be ongoing operations, rendering timely information that might,
in other contexts, be regarded as stale").
That is game, set, and match. The affidavits submitted
in connection with the applications for the five cellphone warrants
contained more than enough information to justify a finding of
probable cause to believe that the defendant was engaged in drug
trafficking and that the cellphones were likely to contain evidence
of that activity. The motion to suppress the fruits of the
cellphone searches was, therefore, appropriately denied.
2. The Connecticut Apartment Warrant. We turn next to
the warrant authorizing a search of the apartment in Norwich,
Connecticut. The defendant contends that this warrant was not
supported by probable cause sufficient to show that the apartment
likely contained evidence of drug trafficking. The record, though,
tells a different tale. The affidavit annexed to the application
for the challenged warrant contains more than enough information
to underpin a finding of probable cause.
Collectively, the two affidavits that underpinned the
issuance of this warrant recount various encounters by police
officers with the Connecticut apartment. In December of 2014,
officers observed a suspect in an unrelated murder investigation
enter and leave an apartment (later identified as Apartment #3) on
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the third floor of the apartment building. The following February,
officers learned that the murder suspect had visited "Apartment
#3" three months earlier to retrieve a handgun. Also in February,
officers encountered one Larry Miliner, an associate of the
suspect, outside the apartment building and in possession of
cocaine. Miliner said that, roughly an hour before the officers'
arrival, he had entered the same apartment that the murder suspect
previously had visited. The police identified this apartment as
Apartment #3. Upon further inquiry, Miliner stated that it was
rented by his cousin "Eric" and also stated that the apartment
housed both "an aggressive pitbull" and "several other dogs locked
within a bedroom." When pressed for further details about the
apartment, he "became uncooperative."
When queried, the property manager identified "Eric
Adams" as the tenant renting Apartment #3. He reported that Adams
had not been seen in the vicinity for over a month. The affiants
then noted — drawing on their collective experience — that drug
traffickers often maintain "stash houses" for the storage of drugs
and firearms and that these sites are "commonly protected by
canines" and frequented by dealers for only short periods of time.
Finally, the affiants observed that Adams was known to be a
"member[] of the Bloods street gang" and had "recently been
investigated for trafficking large amounts of cocaine" in Maine.
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While these facts, if taken in isolation, may leave room
for innocent explanation, we conclude that, taken together, they
form an adequate basis for a finding of probable cause to believe
that Apartment #3 was being maintained as a stash house and would
likely contain evidence of drug trafficking. Cf. Bourjaily v.
United States, 483 U.S. 171, 180 (1987) ("The sum of an evidentiary
presentation may well be greater than its constituent parts.").
The defendant resists this conclusion. His argument, though, is
easily dispatched.
One pillar of the defendant's argument is that Miliner
never told the officers that the drugs found on his person came
from Apartment #3. This is true as far as it goes, but it does
not take the defendant very far. According to the affidavit,
Miliner was found with drugs on his person, and he stated that he
had been in an apartment that the officers identified as Apartment
#3 roughly an hour before the officers' arrival. This information
took on added importance when, after a search, Miliner's own
apartment was found to be free of drugs. One reasonable inference
that could be drawn is that the drugs recovered from Miliner's
person came from Apartment #3. See Tanguay, 811 F.3d at 81
(explaining that reviewing courts must affirm denials of
suppression motions that are "supported by any . . . objectively
reasonable view of the evidence").
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Another pillar of the defendant's argument is his
assertion that the information concerning the murder suspect's
retrieval of a gun from Apartment #3 had grown stale by the time
the officers were told about this event three months later. We
think that the district court had room to find that this
information was not stale, see Tiem Trinh, 665 F.3d at 13-14; and
in any event, the officers' encounter with Miliner took place on
the very same day that the warrant authorizing a search of
Apartment #3 was issued. The information gleaned from that
encounter, when fused with the officers' knowledge of the
defendant's involvement in gang activities and drug trafficking,
was enough to support a finding of probable cause for the search.
See Almonte-Báez, 857 F.3d at 32.
That ends this aspect of the matter. The remainder of
the defendant's arguments either depend upon information that is
dehors the record or relate to matters that are only of marginal
relevance to the probable cause calculus. Reading the affidavits
in their entirety and drawing reasonable inferences to the district
court's behoof, we hold that the court did not clearly err in
denying the defendant's motion to suppress the fruits of the
Connecticut apartment search.
3. The No-Knock Warrant. The defendant next trains his
fire on the warrant authorizing a no-knock entry into his hotel
room for the purpose of executing previously issued arrest warrants
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for the defendant and his confederate. Once again, he is shooting
blanks.
At the outset, the defendant suggests that the factual
allegations contained in the underlying affidavit were inadequate
to permit a finding of probable cause to search the hotel room.
This suggestion is hopeless. The affidavit remarked the existence
of an outstanding arrest warrant for the defendant and described
both cellphone location data and physical surveillance
establishing the defendant's presence at the hotel. No more was
exigible to make out a sufficient showing of probable cause.
There is also a second, independently sufficient, reason
why this challenge fails: the defendant attempts to raise it for
the first time on appeal. We have held, with unrivaled
consistency, that (subject to narrow exceptions, not relevant
here) legal theories cannot make their debut in the court of
appeals. See Teamsters Union, Loc. No. 59 v. Superline Transp.
Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled
in this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal.").
The defendant does have one preserved argument
implicating the hotel room warrant. In the court below, he argued
that the no-knock provision of the warrant was unsupported.
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Although the defendant renews this argument on appeal, he gains no
traction from it.
Urging us to find an insufficient factual basis for the
no-knock provision, the defendant seizes upon the affiant's
statement that "drug traffickers often keep firearms with them to
protect their product." He insists that "boilerplate language" in
the affidavit was inadequate to support a no-knock entry in the
absence of some particularized basis for believing that the
defendant was armed. The defendant, however, leans too heavily on
a dysphemism that does not fit.
Although law enforcement officers executing a warrant
ordinarily must knock and announce their presence, a magistrate
may authorize a no-knock entry if the applicant offers reasonable
grounds to expect that the typical knock-and-announce procedure
"would be dangerous or futile, or . . . would inhibit the effective
investigation of the crime by, for example, allowing the
destruction of evidence." United States v. Banks, 540 U.S. 31, 36
(2003) (alteration in original) (quoting Richards v. Wisconsin,
520 U.S. 385, 394 (1997)); see United States v. Jones, 523 F.3d
31, 36 (1st Cir. 2008). In the case at hand, the affidavit
submitted with the no-knock warrant application established
reasonable grounds to think that the defendant and his confederate
might be armed. It described evidence gathered from confidential
informants indicating that the two men were engaged in drug
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trafficking. This evidence included descriptions of controlled
buys and contained assurances from an informant that the defendant
"ke[pt] his shit" at the hotel. We have previously deemed it "a
commonsense inference" that drug traffickers often keep firearms
on hand to protect "drug cash and spoils from any would-be
robbers." United States v. Rivera, 825 F.3d 59, 65 (1st Cir. 2016)
(explaining that this inference derives "from the everyday
understanding of the drug trade's violent nature"). Drawing this
commonsense inference, we conclude that the facts delineated in
the affidavit justified the inclusion of a no-knock provision in
the warrant.
4. The Storage Locker Warrant. This brings us to the
warrant authorizing the search of the storage locker rented by the
girlfriend of one of the defendant's associates. The defendant
claims that this warrant was not supported by a showing of probable
cause to believe that the storage locker was likely to contain
contraband or other evidence of drug trafficking. Relatedly, he
claims that the authorities had no reason to connect anything in
the locker to him. These claims do not withstand scrutiny.
To begin, the affidavit underpinning the warrant
painstakingly recounted the events leading up to the defendant's
arrest, including the affiant's observations of the defendant
leaving the hotel and retrieving a bag from the blue Volkswagen.
This account went on to catalog the contraband seen inside the
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hotel room and in the bag that the defendant had retrieved. Then,
it described the paperwork for the storage locker found in a
subsequent warrant-backed search of the blue Volkswagen and noted
the existence of video footage showing the defendant's associate
accessing the locker shortly before the defendant's arrest.
Finally, it revealed that a canine sniff performed immediately
outside the storage locker had yielded a positive alert. Taken in
the ensemble, the facts contained within the four corners of the
affidavit comprised a solid predicate for a finding of probable
cause to believe that the storage locker was likely to contain
proof of the defendant's suspected drug trafficking.
There is one loose end. The defendant asserts that the
affidavit underpinning the storage locker warrant included
"intentionally or recklessly false information" and that the
district court brushed off his request for a hearing about these
supposed infirmities. See Franks v. Delaware, 438 U.S. 154, 155-
56 (1978); see also United States v. Barbosa, 896 F.3d 60, 67-69
(1st Cir. 2018) (outlining requirements for Franks hearing
challenging veracity of warrant application). This assertion,
though, lacks a foothold in the record: the defendant never
requested a Franks hearing concerning this affidavit.4 Seen in
4
The record citation that he furnishes in support of this
claim of error relates to his request for a Franks hearing about
the affidavit connected with the no-knock warrant for his hotel
room. That Franks claim has not been pursued on appeal.
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this light, the defendant's claim of error falls squarely within
the general rule that a party cannot ask the court of appeals for
relief that he did not seek in the district court. See United
States v. Tkhilaishvili, 926 F.3d 1, 18 (1st Cir.), cert. denied,
140 S. Ct. 412 (2019); Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st
Cir. 1989).
C. The Motion to Reconsider.
We need not linger long over the defendant's challenge
to the district court's denial of his motion to reconsider various
suppression rulings. As we explain below, this challenge does not
make it out of the starting gate.
To begin, we note a temporal anomaly. As said, the plea
agreement makes pellucid that the defendant may appeal only the
district court's orders denying his motions to suppress, that is,
the orders entered on November 29, 2016, and May 12, 2017,
respectively. On its face, then, the order denying the motion to
reconsider appears to fall outside the boundaries of these reserved
appeal rights. Because the conditional plea in this case reserved
to the defendant only the right to appeal those suppression rulings
specified in the plea condition, it would seem likely that the
defendant has waived any right to appeal the denial of the motion
to reconsider.
The problem, though, is that the motion to reconsider
was not filed until December 1, 2017, months after the district
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court's acceptance of the defendant's conditional guilty plea. We
have been unable to find any persuasive authority applying a
conditional plea agreement's preclusive effect to a pretrial
motion filed after the conditional plea was accepted. Here,
however, we need not venture onto terra incognita and try to
resolve this conundrum: there is another — and fully dispositive
— reason why this claim of error goes up in smoke.
This dispositive reason rests on a familiar principle.
That principle relates to the novelty of the contents of the
motion to reconsider. Although the motion purported to challenge
the denial of the defendant's earlier suppression motions, it
featured an array of entirely new arguments. "[I]t is settled
beyond hope of contradiction that, at least in the absence of
exceptional circumstances, a party may not advance new arguments
in a motion for reconsideration when such arguments could and
should have been advanced at an earlier stage of the litigation."
Carib. Mgmt. Grp. v. Erikon LLC, ___ F.3d ___, ___ (1st Cir. 2020)
[No. 19-1421, slip op. at 21]; accord Mancini v. City of Providence
ex rel. Lombardi, 909 F.3d 32, 48 (1st Cir. 2018); United States
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). Since the new arguments
advanced in the motion for reconsideration were available to the
defendant both at the times that he moved to suppress and when he
entered his plea and since the circumstances of this case are in
no way exceptional, he is foreclosed from raising those new
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arguments for the first time on appeal. Consequently, his claim
of error dies aborning.
D. The Plea-Withdrawal Motion.
The defendant has one last shot in his sling. He assigns
error to the district court's denial of his motion to withdraw his
conditional guilty plea. Some stage-setting helps to lend
perspective.
A criminal defendant "has no absolute right to withdraw
a guilty plea." United States v. Caramadre, 807 F.3d 359, 366
(1st Cir. 2015). Where, as here, a defendant moves to withdraw a
guilty plea after the district court has accepted the plea but
before sentencing, he bears the burden of establishing "a fair and
just reason for requesting the withdrawal." Id. (quoting Fed. R.
Crim. P. 11(d)(2)(B)). The most important integer in the plea-
withdrawal calculus is whether the defendant's "original guilty
plea was knowing, intelligent, and voluntary." Id. Of course, an
inquiring court also should consider other factors, such as "the
plausibility and weight of the reason given for the withdrawal,
the timing of the request, whether the defendant is now colorably
asserting legal innocence, and whether the original plea was
pursuant to a plea agreement." Id. (quoting United States v. Aker,
181 F.3d 167, 170 (1st Cir. 1999)). If the totality of these
factors militates in favor of allowing the plea to be withdrawn,
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the court should then consider whether, and to what extent,
withdrawal would prejudice the government. See id.We review a district court's denial of a motion to
withdraw a guilty plea for abuse of discretion. See United States
v. Dávila-Ruiz, 790 F.3d 249, 251 (1st Cir. 2015). "An abuse of
discretion 'occurs when a material factor deserving significant
weight is ignored, when an improper factor is relied upon, or when
all proper and no improper factors are assessed, but the court
makes a serious mistake in weighing them.'" United States v.
Soto-Beníquez, 356 F.3d 1, 30 (1st Cir. 2003) (quoting Indep. Oil
& Chem. Workers, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927,
929 (1st Cir. 1988)).
In this instance, the defendant submits that his guilty
plea was neither knowing nor voluntary when tendered because he
had insufficient time to digest late-breaking discovery and to
consider the government's final plea offer. In addition, the
defendant says that the looming prospect of a potential life
sentence and concerns about his family clouded his judgment and
rendered his guilty plea involuntary. Following a hearing at which
the defendant testified, the district court rejected these
importunings and found that the defendant's original plea was
knowing, intelligent, and voluntary. The court emphasized that
the defendant — who was no "neophyte in dealing with the [criminal
justice] system" — had engaged in "fairly extensive plea
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negotiations" and had not made a "spur-of-the-moment" decision.
In the court's view, the defendant was simply having "second
thoughts" about his earlier capitulation.
We discern nothing resembling an abuse of discretion in
the district court's determination that the defendant failed to
establish a fair and just reason for withdrawing his guilty plea.
There is no indication that the court overlooked any material
factor, relied upon any improper factor, or made a serious mistake
in judgment when weighing the relevant considerations. We add
only a few brief comments.
To begin, the defendant's contention that he had
insufficient time to consider belated discovery is unconvincing.
The defendant's chief complaint in this respect relates to the
production, shortly before the planned commencement of jury
selection, of the full arrest record of one of the participants in
a controlled drug buy. This record included two arrests, at least
one of which was for drug possession. As the defendant tells it,
this arrest record "bolstered his defense."
But there is a rub. The defendant had long been aware
of the affidavit underpinning the no-knock search warrant, which
made clear that this particular confidential informant had been
arrested for drug possession after the controlled buy and
subsequently terminated as an informant. The upshot is that the
defendant — when filing his motions to suppress and thereafter —
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had available enough information to argue that the confidential
informant's drug use and difficulties with the law rendered her
unreliable. And to seal the deal, the defendant and his counsel
received all the remaining information about the confidential
informant at least a few days before the defendant decided to enter
a conditional guilty plea.5 It follows that, before deciding to
plea, the defendant had adequate time to weigh whether the
confidential informant's full arrest history might strengthen his
defense.
The defendant's remaining arguments in favor of allowing
him to withdraw his plea are equally unavailing. Although we do
not doubt that the defendant may have felt "[p]ressured by the
prospect of a life sentence" and the potential hardship such a
sentence would inflict on "his ailing mother and his children,"
many criminal defendants labor under the strain of such
considerations. See United States v. Pellerito, 878 F.2d 1535,
1541 (1st Cir. 1989) (explaining that criminal prosecutions are
inherently "stressful experiences" and that "many defendants" are
5
The record is murky as to exactly when the defendant received
this information — but it is beyond dispute that he received it
before he entered his conditional plea. The government told the
district court that full arrest histories had been provided to the
defendant roughly three weeks before the defendant tendered his
plea. The defendant maintains, though, that he received the
information just days before he pleaded. Either way, it is
apparent that the defendant and his counsel had at least a few
days to review the confidential informant's full arrest record and
decide whether to proceed with plea negotiations.
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"sensitive to external considerations" such as familial
pressures). A defendant seeking to unravel a guilty plea "must
show more than a mere 'sensitiv[ity] to external considerations.'"
Caramadre, 807 F.3d at 369 (alteration in original) (quoting
Pellerito, 878 F.2d at 1541). Instead, such a defendant must show
that he pleaded guilty "under so much duress that [his plea] could
no longer be considered a product of free will." Id. Evidence of
agitation arising out of familial circumstances does not, without
more, show duress or lack of voluntariness. See Pellerito, 878
F.2d at 1541. In this case, there is no "more."
Nor is the needle moved by the defendant's argument that
he "did not have sufficient time" to consider the government's
final plea offer. Although he says that he had only ninety minutes
to weigh the offer, there is nothing to suggest that this was a
hard deadline imposed by the government. At any rate, the record
makes manifest that plea negotiations were ongoing throughout the
week that jury selection was slated to begin and that the defendant
had several meetings with his attorney during the course of that
week with respect to the government's offers. A defendant's
participation in the plea negotiation process is a highly relevant
fact in considering whether his guilty plea was knowing and
voluntary. See Caramadre, 807 F.3d at 370. So, too, is the length
of the period during which plea negotiations persisted. See United
States v. Pagan-Ortega, 372 F.3d 22, 29 (1st Cir. 2004).
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We add, moreover, that the defendant has proffered no
meaningful claim of actual innocence. Although he made a vague
assertion of innocence at the hearing on his plea-withdrawal
motion, the district court gave that assertion "no credibility
whatsoever." Credibility determinations are normally grist for
the factfinder's mill, see Caramadre, 807 F.3d at 372, and we see
no abuse of discretion in the district court's determination that
the defendant's stroke-of-midnight claim of innocence was not
credible. After all, a district court is not obliged "to give
weight to a self-serving, unsupported claim of innocence." United
States v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987). This is
especially true when — as in this case — such a belated claim of
innocence "flies in the face of several admissions to the
contrary." United States v. Santiago Miranda, 654 F.3d 130, 139
(1st Cir. 2011) (quoting United States v. Isom, 580 F.3d 43, 53
(1st Cir. 2009)).
Refined to its essence, this case strikes a familiar
note. The defendant "affirmatively declared under oath at a
properly conducted Rule 11 hearing that he was guilty of the crimes
with which he was charged." United States v. Flete-Garcia, 925
F.3d 17, 25 (1st Cir.) (quoting United States v. Dunfee, 821 F.3d
120, 128 (1st Cir. 2016) (per curiam)), cert. denied, 140 S. Ct.
388 (2019). He has failed to offer any persuasive reason as to
why we should permit him to walk away from those solemn
- 32 -
declarations. Consequently, the district court was free to give
decisive weight to the statements made by the defendant at the
change-of-plea colloquy. See id.To say more would be pointless. "This court has not
allowed defendants, absent coercion or mistake, to renege on plea
agreements on the basis that they have miscalculated their risks
and benefits or have belatedly discovered a new defense." United
States v. Muriel, 111 F.3d 975, 981 (1st Cir. 1997). Buyer's
remorse is not enough. Hewing to that line, we conclude that the
district court did not abuse its discretion in determining that
the defendant failed to establish a fair and just reason for
withdrawing his conditional guilty plea.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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