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United States v. Mercer

United States Court of Appeals, First Circuit

August 17, 2016

CRAIG MERCER, Defendant, Appellee.


          K. Hayne Barnwell for appellant.

          Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

          Before Torruella, Lynch, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Craig Mercer challenges his conviction and sentence for possession of cocaine with intent to distribute. Mercer raises a number of issues on appeal. They relate to the District Court's denial of a pre-trial motion to suppress, the conduct of the trial proceedings, and the District Court's sentencing determinations. Finding no errors, we affirm.


         On September 20, 2013, police pulled over the gold Saturn that Mercer was driving, arrested Mercer on the basis of outstanding warrants, and recovered, among other things, two ounces of cocaine from a search of the car. Authorities then charged Mercer with one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).

         Prior to trial, Mercer filed a motion to suppress the cocaine evidence on the ground that it was the fruit of an unconstitutional seizure of the Saturn. The District Court denied the motion to suppress on May 29, 2014. A jury trial was then held, resulting in Mercer's conviction.

         The District Court sentenced Mercer to a term of imprisonment of 41 months. The District Court's sentence was at the top end of the range that the pre-sentence report ("PSR") calculated under the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G"). The PSR based that range on a total offense level of 18, which included enhancements for obstruction of justice, U.S.S.G. §3C1.1, and possession of a dangerous weapon during the offense, U.S.S.G. §2B1.1(b)(1). The District Court also sentenced Mercer to a term of supervised release of five years and assessed monetary penalties. This appeal followed.


         We start with Mercer's challenge to the District Court's denial of his motion to suppress. Mercer contends that the District Court erred in ruling that the stop of the Saturn was lawful. On a suppression motion, we review findings of fact for clear error and legal conclusions, including the ultimate reasonable suspicion determination, de novo. See United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001). We conclude that the District Court did not err.

         Mercer concedes, as he must, that the stop was lawful if law enforcement had reasonable grounds to suspect that Mercer was in possession of drugs at the time that police made the stop. See United States v. Arvizu, 534 U.S. 266, 273 (2002) ("[I]n brief investigatory stops of persons or vehicles, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity 'may be afoot.'" (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989))). But Mercer contends that the only basis law enforcement had for suspecting that Mercer would be in possession of such contraband was his association with one man -- Richard Magee -- who law enforcement had reason to suspect was engaged in drug trafficking. And Mercer further contends that his mere association with Magee was not enough to justify the stop of the Saturn. See Ybarra v. Illinois, 444 U.S. 85, 90-91 (1979) (holding that officers "had no reason to believe" that patron of tavern "had committed, was committing, or was about to commit" any crime, where officers "knew nothing in particular about [patron], except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale"); cf. Sibron v. New York, 392 U.S. 40, 62 (1968) ("The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security.").

         The record shows, however, that the officers knew, at the time of the stop, that:

• Magee supplied cocaine to a person by the name of David Jones;
• Magee and Jones would sometimes consummate drug deals at Ruski's, a restaurant in Portland, Maine;
• Magee planned to supply cocaine to Jones at Ruski's on September 20, 2013;
• Magee told Jones, in the course of an intercepted phone conversation that occurred on September 20, that he was running late to Ruski's, that Jones might want to come to Magee's house to consummate the drug deal, and that Jones should tell "Craig" to wait at Ruski's because he was still planning to go there;
• Magee at some point left his house and went to Ruski's, where agents observed a man -- whom we now know to be Mercer -- who "appeared to be waiting for someone" and who was "kind of pacing up and down the sidewalk";
• Magee, upon arriving at Ruski's, approached Mercer's Saturn, conversed with Mercer, and at one point "leaned inside the driver's window [of the Saturn], which was down, just for a moment";
• Magee then went inside Ruski's, gave a package to a female bartender, exited Ruski's, and conversed with Mercer yet again, at one point "leaning on the passenger door window" of the Saturn;
• Mercer shortly thereafter departed in his Saturn, without ever having entered Ruski's or interacted with ...

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