Not for Publication in West’s Federal Reporter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,

(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.

- 2 - 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,

(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

- 3 - 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

- 4 - need to review only one: that the stop was lawful under the

standard of Terry v. Ohio,

(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,

(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

(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,

- 5 -

(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,

(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,

(1st Cir. 2004) (citing Whren v. United States,

(1996)). What matters is "the objective significance of the particular facts under all the circumstances."

(quoting United States v. Woodrum,

(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."

- 6 - unreasonableness said to affect the admissibility of the

government's trial evidence goes to James's statements made before

receiving Miranda warnings.

. But no warning was in order

until James was in custody, as distinct from Terry detention,

United States v. Teemer,

(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

- 7 - 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,"

, 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,

(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,

(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

- 8 - 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,

(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."

.

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,

(1st Cir. 2015).

Affirmed.

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