United States Court of Appeals For the First Circuit

No. 22-1067

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCIS HARRINGTON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Mary June Ciresi for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.

December 28, 2022 GELPÍ, Circuit Judge. Following an anonymous tip

alerting the Manchester Police Department of two men passed out in

a vehicle, Francis Harrington ("Harrington"), the passenger, was

stopped, pat-frisked, and arrested after the discovery of fentanyl

in his waistband. A federal grand jury in the District of New

Hampshire returned an indictment charging him with one count of

possession with intent to distribute a controlled substance in

violation of

(a)(1) and (b)(1)(B)(vi). Harrington

filed a motion to suppress the fentanyl, arguing that it was

discovered during an unconstitutional stop and search. The

district court held a suppression hearing and denied Harrington's

motion. Harrington filed for reconsideration, and a second hearing

was held, but the motion was again denied. Harrington pled guilty

to the indictment but reserved his right to appeal the district

court's denial of his motion to suppress. He now appeals. We

affirm the denial.

I. BACKGROUND

A. Facts

When "reviewing the denial of a motion to suppress, '[w]e

recount the relevant facts as the trial court found them,

consistent with record support,'" United States v. Romain,

(1st Cir. 2004) (alteration in original) (quoting

United States v. Lee,

(1st Cir. 2003)), and "[w]e

view the facts in the light most favorable to the district court's

- 2 - ruling," United States v. Soares,

(1st Cir. 2008)

(quoting United States v. Kimball,

(1st Cir. 1994)).

On the morning of August 22, 2019, an anonymous caller

reported witnessing two males exit and return to a vehicle (a

Chevrolet Impala) parked across the street from the Red Arrow Diner

at 61 Lowell Street, Manchester, New Hampshire, and proceed to

pass out in the vehicle. The area was commercial with a few

apartments nearby and recognized as a high-volume area for crime

and drug activity.

In response to the anonymous tip, Officer James Pittman

("Officer Pittman"), who had been working for the Manchester Police

Department in New Hampshire for six years, arrived on the scene,

parked behind the vehicle, approached the driver's side, and saw

the driver sleeping or passed out with his head down and his chin

resting on his chest. About thirty seconds later, medical

personnel arrived. Officer Pittman woke up the driver but did not

recall whether he did so by speaking to him or knocking on the

window. When the driver awoke, he seemed lethargic with bloodshot

eyes. Officer Pittman asked him to step out of the vehicle and

realized he had pinpoint pupils that looked "a little bit glassy."

Officer Pittman inferred that the driver was under the influence

of opioids or other narcotics. He conducted a pat-frisk and spoke

to the driver, who denied illegal activity and impairment.

- 3 - While speaking to the driver, Officer Pittman noted that

medical personnel had engaged the passenger -- Harrington -- while

he was still sitting in the vehicle. As Officer Pittman walked

over, he observed one of the medical professionals gesture that

Harrington was not acting normal. Officer Pittman noted that

Harrington appeared lethargic, his eyes were half shut at one

point, and he was swaying from side to side. When Officer Pittman

asked him to step out of the vehicle, Harrington reached around

inside the Chevrolet Impala, including reaching between the seats

near the center console area. Once Harrington finally exited, he

continued to appear lethargic and moved very slowly.

Once Harrington was out of the vehicle, Officer Pittman

requested that he place his hands on top of his head. Harrington

placed one hand over his head but moved the other toward his

pocket. Officer Pittman immediately grabbed his noncompliant arm

and placed it on top of his head to prevent him from reaching into

his pocket and began a pat-frisk. As Officer Pittman ran his hand

over the front of Harrington's waistband, he felt a large bulge

that he believed to be a weapon. He asked Harrington to identify

the object, and Harrington stated, "drugs." Officer Pittman

handcuffed Harrington and removed the bulge, which appeared to be

a large bag containing four brown baggies and a brownish-tan

substance. Based on his training and experience, Officer Pittman

believed the substance to be either fentanyl or heroin. Harrington

- 4 - was placed under arrest. The state lab later confirmed that the

substance consisted of both fentanyl and heroin.

B. Procedural History

Harrington moved to suppress the narcotics. The

District Court for the District of New Hampshire held two hearings

to determine whether the evidence should be suppressed -- one on

August 25, 2020, and a reconsideration hearing on April 22, 2021

-- but denied Harrington's motion both times. Ultimately, the

district court concluded that the investigatory stop did not

violate Harrington's Fourth Amendment rights; that Officer Pittman

had reasonable suspicion of criminal activity to extend

Harrington's seizure after he and the driver regained

consciousness; that Officer Pittman's decision to order Harrington

out of the vehicle was justified; and that Officer Pittman had

reasonable suspicion that Harrington could have been armed with a

weapon to justify a Terry frisk. United States v. Harrington,

(D.N.H. 2021). On May 18, 2021,

Harrington pled guilty to the federal indictment and reserved his

right to appeal the denial of his motion to suppress.

C. Standard of Review

When reviewing a district court's denial of a motion to

suppress, we assess factual findings for clear error and evaluate

legal issues de novo. United States v. Tiru-Plaza,

,

114–15 (1st Cir. 2014). "In assessing these legal conclusions,

- 5 - however, we also give appropriate weight to the inferences drawn

by the district court and the on-scene officers, recognizing that

they possess the advantage of immediacy and familiarity with the

witnesses and events."

. Moreover, we will uphold a

denial of a motion to suppress "provided that any reasonable view

of the evidence supports the decision." United States v. Ferreras,

(1st Cir. 1999). We note that "when two or more

legitimate interpretations of the evidence exist, the factfinder's

choice between them cannot be deemed clearly erroneous," United

States v. Espinoza,

(1st Cir. 2007), and that "we

are not wed to the district court's reasoning but, rather, may

affirm its suppression rulings on any basis apparent in the

record," United States v. Arnott,

(1st Cir. 2014).

II. DISCUSSION

On appeal, Harrington makes three challenges to the

district court's denial of his motion. First, he argues that

"[t]he initial stop was an unlawful detention." Second, he argues

that Officer Pittman impermissibly prolonged the duration of the

stop. Finally, he argues that Officer Pittman did not have

reasonable suspicion to believe he was armed and dangerous, which

Officer Pittman needed, to conduct a pat-frisk. To assess these

challenges, we must evaluate whether reasonable suspicion existed

to support Officer Pittman's conduct at each juncture of the

encounter. We assess each in turn. We note that neither party

- 6 - challenges the district court's findings of fact and, accordingly,

we find no clear error.

A. The Initial Encounter

Although the car was already stopped and parked, both

Harrington and the government have argued that this encounter

should be evaluated under the standards established in Terry v.

Ohio,

(1968), and we accept the agreed-upon mode of

analysis.

First, Harrington argues that the initial stop violated

the Fourth Amendment, contending that as soon as Officer Pittman

observed that the "two men were conscious," "his wellness check

should have ceased" because "[t]he act of sitting or sleeping

inside a car is not an illegal act." Moreover, he claims that for

the investigation to continue, Officer Pittman "needed reasonable

suspicion that criminal activity was afoot," which he did not have.

We disagree.

The Fourth Amendment protects against "unreasonable

searches and seizures." U.S. Const. amend. IV. Evidence obtained

in violation of the Fourth Amendment is subject to exclusion.

Weeks v. United States,

(1914) (adopting exclusionary

rule); Mapp v. Ohio,

(1961) (applying exclusionary

rule to the states); United States v. Camacho,

(1st Cir. 2011). "The protections of the Fourth Amendment apply

not only to traditional arrests, but also to those brief

- 7 - investigatory stops generally known as Terry stops." Camacho,

. A Terry stop is a brief detention that permits a

police officer to, "in appropriate circumstances and in an

appropriate manner[,] approach a person for purposes of

investigating possibly criminal behavior even though there is no

probable cause to make an arrest." Terry,

.

For a Terry stop to comply with the Fourth Amendment,

the officer must have "reasonable suspicion that the person is or

has been engaged in criminal activity." United States v. Brake,

(1st Cir. 2011). This assessment is based on

the "totality of the circumstances," which requires that the

detaining officer have a "'particularized and objective basis' for

suspecting legal wrongdoing." United States v. Arvizu,

(2002) (quoting United States v. Cortez,

(1981)). That is, while the standard is less demanding

than that of probable cause, "the officer nonetheless must possess

(and be able to articulate) more than a hunch, an intuition, or a

desultory inkling of possible criminal activity." Romain,

(citing Terry,

). "[T]he officer's

subjective motives do not enter into the decisional calculus."

at 74 (citing Whren v. United States,

(1996)). Instead, this objective standard asks courts to "focus

not on what the officer himself believed but, rather, on what a

reasonable officer in his position would have thought." Espinoza,

- 8 -

(citing Romain,

). Nevertheless,

"[t]his process allows officers to draw on their own experience

and specialized training to make inferences from and deductions

about the cumulative information available to them that 'might

well elude an untrained person.'" Arvizu,

(quoting

Cortez,

).

With these principles in mind, we ask whether given the

totality of the circumstances, a reasonable officer in Officer

Pittman's position would have had reasonable suspicion -- that is,

a particularized and objective basis grounded in specific and

articulable facts -- that Harrington was involved in criminal

activity. In other words, whether a reasonable officer would

possess more than a mere "hunch," more than a "desultory inkling,"

that crime was afoot. Romain,

. We agree with the

district court's conclusion that an officer would.

Officer Pittman had more than a "hunch" that criminal

activity was taking place given the totality of the circumstances.

Using and possessing illegal substances constitute criminal

activity.

-B:2 (West 2022);

. Officer Pittman was alerted via a phone call that two men

were passed out at 8:30 a.m. on a weekday morning in a parked

vehicle; observed two men passed out or sleeping in the vehicle

identified in the phone call at an unusual time; knew that the

vehicle was parked in a high-crime area known for illegal drug

- 9 - use; observed that the driver appeared lethargic and had bloodshot,

glassy, pinpoint eyes; and noted that there was no smell of alcohol

or marijuana, indicating that such behavior could be attributed to

illegal drug use rather than a legal substance.

Taken together, these facts indicate more than a mere

"inkling," Romain,

, that criminal activity was

afoot, given the unusual time of day for a nap, the peculiarity of

individuals napping on a weekday, the reality that the area was

known for high drug use, and the obvious signs of drug impairment.

Thus, we would be hard-pressed to conclude that a reasonable

officer in Officer Pittman's position would not suspect illegal

drug use in this context.

While Harrington argues that sleeping may not, on its

own, give rise to reasonable suspicion, "our task is not to perform

a 'divide-and-conquer analysis'" but "to look at the totality of

the circumstances." United States v. Cruz-Rivera,

(1st Cir. 2021) (quoting Arvizu,

). "[A] fact that

is innocuous in itself may in combination with other innocuous

facts take on added significance." United States v. Ruidíaz,

(1st Cir. 2008); see also Illinois v. Wardlow,

(2000) (explaining that a Terry stop may be

permissible even if "the conduct justifying the stop was ambiguous

and susceptible of an innocent explanation"). Taken together with

- 10 - the other facts described above, Harrington's conduct provided

reasonable suspicion to justify the stop.

B. The Length of the Stop

Harrington next argues that the stop was unlawfully

prolonged, and that Officer Pittman had no basis to question him

upon failing to find weapons on the driver. We disagree.

While it is true that even a lawful stop "can become

unlawful" if it is unnecessarily lengthy, Illinois v. Caballes,

(2005), "there is no bright-line rule" to assess

the duration of a stop, Tiru-Plaza,

(citing United

States v. Pontoo,

(1st Cir. 2011)). Instead, the

length of a stop is determined by the seizure's mission. United

States v. Dion,

(1st Cir. 2017). We have

recognized that "the police are in need of an escalating set of

flexible responses, graduated in relation to the amount of

information they possess."

at 125 (quoting Terry,

).

Here, the district court properly concluded that

"Officer Pittman was allowed to check on both the driver and

passenger" before concluding the stop. Harrington,

. Officer Pittman's mission was to determine whether the

occupants -- not occupant -- were possibly impaired or under the

influence of illegal drugs, a concern which did not dissipate when

both occupants awoke.

As the district court stated, using

- 11 - and possessing illegal substances are crimes. 318-B:2;

. After Officer Pittman investigated the driver, it only

logically followed that he assess whether the other occupant -

- Harrington -- was impaired.

Harrington argues that Officer Pittman lacked reasonable

suspicion to investigate him both because the search of the driver

did not confirm that the driver was engaged in illegal drug use,

and because the frisk of the driver did not uncover any weapons.

As to the former argument, reasonable suspicion does not require

absolute certainty of illegal activity. See, e.g., Wardlow,

. Officer Pittman noted that the driver was lethargic

and had pinpoint, glassy eyes. That observation, if anything,

added to the grounds for reasonable suspicion discussed above; it

certainly did not diminish them. As to the latter argument, the

fact that the driver did not possess any weapons has little bearing

on whether a reasonable officer would suspect that Harrington was

engaged in distinct criminal offenses involving drug use or

possession.

C. The Removal from the Vehicle and Pat-Frisk

First, Harrington argues that Officer Pittman violated

the Fourth Amendment by ordering him to exit the vehicle because

Officer Pittman lacked reasonable suspicion, which is required to

order someone out of a vehicle. We disagree. Here, the relevant

moment for assessing whether reasonable suspicion existed is

- 12 - immediately before Officer Pittman asked Harrington to step out of

the vehicle, but Officer Pittman had reasonable suspicion at this

juncture, as outlined supra. In fact, Officer Pittman had

reasonable suspicion that crime was afoot even before this moment

because he already had reasonable suspicion when he turned his

attention from the driver to Harrington. Officer Pittman's

subsequent interaction with Harrington (wherein Harrington

appeared lethargic), which occurred immediately before ordering

him out of the vehicle, only increased Officer Pittman's reasonable

suspicion. Thus, it was permissible for Officer Pittman to order

Harrington out of the vehicle on those grounds. United States v.

Taylor,

(1st Cir. 2007) (analyzing whether there

was "sufficient reasonable suspicion to justify [an officer's]

decision to order [a defendant] to step out of [a parked] car").

Second, Harrington argues that Officer Pittman lacked

reasonable suspicion to believe that he was armed and dangerous.

We do not agree. We are careful to make this decision on the

totality of the circumstances and hold that Officer Pittman's frisk

was supported by objective and particularized facts sufficient to

give rise to reasonable suspicion that Harrington was armed and

dangerous.

The Fourth Amendment protects against warrantless

searches and seizures, subject to limited established exceptions.

One of these exceptions is a Terry pat-frisk. Terry held that

- 13 - when an officer "observes unusual conduct which leads him

reasonably to conclude . . . that criminal activity may be afoot"

and that the defendant is "armed and presently dangerous," the

officer may engage in a "limited search of the outer clothing of

such persons in an attempt to discover weapons which might be used

to assault [the officer]."

. Such weapons can

include "guns, knives, clubs or other hidden instruments."

.

To determine whether a pat-frisk for weapons is

appropriate, we ask whether the investigatory stop was valid and

whether "the officer is justified in believing that the person is

armed and dangerous to the officer or others." United States v.

McKoy,

(1st Cir. 2005). Having concluded that

Officer Pittman had reasonable suspicion that criminal activity -

- illegal drug use and possession -- was occurring, we address

whether Officer Pittman had reasonable suspicion that Harrington

was armed and dangerous such that a pat-frisk would be permissible.

The reasonable suspicion standard for the pat-frisk is

the same as that for the initial stop except it focuses on whether

the individual is "armed and dangerous."

Thus, whether

Officer Pittman's suspicions were reasonable is a "fact-sensitive

task" which looks at the totality of the circumstances to determine

whether there is a particularized, objective basis to suspect

someone is armed and dangerous. United States v. Chhien, 266 F.3d

- 14 - 1, 8 (1st Cir. 2005). A "mosaic" of factors may be used to justify

reasonable suspicion, Ornelas v. United States,

(1996), including the suspect's behavior, the context of the stop,

and the crime rate in the area, Wardlow,

. The

standard is objective -- the arresting officer's subjective intent

is irrelevant. Tiru-Plaza,

.

Harrington argues that Officer Pittman lacked reasonable

suspicion to believe he was armed and dangerous because of his

weakened state -- he "was acting lethargic, swaying from side to

side and appeared to be reaching around." Further, he was not

"belligerent," "angry," or "resisting arrest."

Objectively, the facts before us give rise to reasonable

concern for officer safety. We begin with the facts known to

Officer Pittman -- whom the district court found credible -- prior

to the pat-frisk. See Florida v. J.L.,

(2000)

("[R]easonableness of official suspicion must be measured by what

the officers knew before they conducted their search."). Officer

Pittman had observed multiple indications that Harrington was

under the influence of drugs, as discussed above. See United

States v. Bustos-Torres,

(8th Cir. 2005) (noting

connection between drug transactions and weapons); Arnott,

(same). Further, when Officer Pittman asked Harrington

to step out of the vehicle, he delayed exiting and reached around

inside the vehicle, near the center console area. Once out of the

- 15 - vehicle, Officer Pittman instructed Harrington to place his hands

on top of his head, but while Harrington placed one hand over his

head, he moved the other toward his pocket. Finally, Officer

Pittman knew that he was responding to a call in an area known for

high drug use. Although "[a]n individual's presence in an area of

expected criminal activity, standing alone, is not enough to

support a reasonable, particularized suspicion that the person is

committing a crime," police can consider the "relevant

characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further

investigation." Wardlow,

. Additionally, the

Supreme Court has stated that an "officer need not be absolutely

certain that the individual is armed" to conduct a pat-frisk.

Terry,

.

Thus, by the time of the pat-frisk, a reasonable officer

could point to "specific and articulable facts, which taken

together with rational inferences from those facts," would

reasonably warrant the pat-frisk given fear for officer safety.

. Namely, the observation of two men passed out; the

location of the vehicle in a high-crime area; the clear signs of

opioid impairment; and, most notably, Harrington's reaches for

something inside the vehicle, his noncompliance when asked to place

both hands on top of his head, and his reach toward his pocket.

These facts, and, in particular, Harrington's noncompliance on

- 16 - more than one occasion, combined with the common association

between drug transactions and weapons gave the police reason to

suspect the presence of a traditional weapon as contemplated by

Terry. See, e.g., Bustos-Torres,

("Because weapons

and violence were frequently associated with drug transactions, it

is reasonable for an officer to believe a person may be armed and

dangerous when the person is suspected of being involved in a drug

transaction."). When taken together, these facts support a

reasonable suspicion that Harrington was armed and dangerous.

Harrington claims that Officer Pittman testified that he

did not believe that Harrington was armed with a "firearm, knife,

or other type of projectile weapon,"1 and thus could not have

believed Harrington was armed and dangerous. However, this

argument misconstrues the reasonable suspicion standard. The test

1 The government argues that beyond these objective facts, we should acknowledge that Officer Pittman also had a subjective fear that Harrington might have a hypodermic needle which he could use to stab him or medical personnel. The government urges us to hold that a hypodermic needle qualifies as a weapon under Terry. While some courts have concluded that a needle may be considered a weapon for purposes of Terry, we need not decide that issue in this case. See, e.g., United States v. Rush, No. 15-CR-105,

, at *4 (D. Minn. Jul. 13, 2015) ("The limited pat-down search for needles was permissible under Terry to ensure officer safety, since the hypodermic needles could easily be used as weapons."); United States v. Gillespie,

, at *2 (E.D. Tenn. Mar. 3, 2006) (finding that an officer's efforts to ensure he would not be stuck with a needle were reasonable). Instead, we find sufficient objective facts to conclude that a reasonable officer would suspect that Harrington possessed one of the traditional weapons already covered by our Terry jurisprudence.

- 17 - is objective, asking whether a reasonable officer in Officer

Pittman's shoes would have believed Harrington was armed and

dangerous, not whether Officer Pittman himself believed Harrington

was armed and dangerous. Espinoza,

(citing Romain,

). Even though Officer Pittman did not believe

Harrington had one of the weapons he described, a reasonable

officer would have had this suspicion given the relationship

between drug transactions and firearms; the circumstances in which

Harrington was found; and the fact that Harrington reached around

in his car and toward his pocket while Officer Pittman was speaking

with him. See Arnott,

("The connection between

drugs and violence is, of course, legendry."); United States v.

Dubose,

(1st Cir. 2009) (holding, among other

things, that a pat-frisk search was valid including because "drug

dealers often carry weapons concealed in their waistbands");

United States v. Trullo,

(1st Cir. 1987)

(affirming the validity of a pat-frisk noting that "concealed

weapons [are] part and parcel for the drug trade").

Moreover, our holding is in line with our decision in

McKoy. There, we held that the officer lacked reasonable suspicion

to pat-frisk the defendant after he was stopped in a high-crime

area for a parking and license plate violation and leaned toward

the center console as the officer approached, since there is

"nothing sinister or menacing" about this movement as it is

- 18 - "consistent with reaching for a driver's license or registration."

Id. at 40. Unlike in McKoy, we do not have a traffic stop for

parking and license violations and a single abnormal movement on

the part of the defendant. Rather we have a stop prompted by a

phone call suggesting drug use in an area known for such use,

observations by an officer of symptoms of use of opiates, an

individual reaching for something near the center console after

being asked to step out of the vehicle, and noncompliance after

the individual is instructed to place both hands over his head.

When taken together, this abnormal behavior would lead a reasonable

officer to believe an individual is armed and dangerous.

Harrington further argued at oral argument that a

reasonable officer could not have considered him armed and

dangerous because of his debilitated state. Harrington would have

us hold that his swaying from side to side and lethargic behavior

ameliorated any legitimate concern that he posed a danger.

However, as the district court stated, "persons suspected of drug

use often exhibit unpredictable changes in behavior or erratic

behavior." Harrington,

. At this point in

the stop, it would be reasonable for an officer to suspect that

Harrington was under the influence of opiates and consequently,

that he may engage in impulsive behavior.

Finally, we note that we are careful to cabin our holding

to the facts of this case and in particular, the totality of the

- 19 - circumstances -- including the high-crime area, the anonymous tip,

obvious signs of drug impairment, the relationship between drug

transactions and traditional weapons, the reach toward the center

console, and the reach toward his pocket -- as required by our

Fourth Amendment jurisprudence.

III. CONCLUSION

Thus, we conclude that because Officer Pittman had

reasonable suspicion for the initial encounter, for extending the

stop, and to believe Harrington was armed and dangerous, there was

no Fourth Amendment violation to warrant exclusion of the evidence.

We thus affirm the denial of Harrington's motion to suppress.

- 20 -