          United States Court of Appeals
                      For the First Circuit

No. 16-2465

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                          TODD RASBERRY,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Jon D. Levy, U.S. District Judge]


                              Before

                       Lynch, Circuit Judge,
                    Souter, Associate Justice,
                     and Selya, Circuit Judge.


     Joshua L. Gordon for appellant.
     Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.


                         February 14, 2018




     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             SELYA, Circuit Judge.        Todd Rasberry found himself in a

jam: during a pat-down incident to a Terry stop, see Terry v. Ohio,

392   U.S.   1,    19-20   (1968),   an   agent    of   the   Drug    Enforcement

Administration (DEA) discovered a softball-sized object stashed in

Rasberry's    undershorts.       Believing    that      the   object    contained

drugs, the agent arrested Rasberry on the spot.                      A subsequent

search of Rasberry's person proved the agent's prescience.

             Following     his   indictment       for   controlled      substance

offenses, Rasberry moved to suppress, arguing among other things

that the seizure of the contraband violated the "plain feel"

doctrine.     See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).

After the district court denied his motion, Rasberry tendered a

conditional guilty plea. The court accepted the plea and sentenced

Rasberry to serve 138 months' imprisonment.

             We reject Rasberry's attempt to pigeon-hole the seizure

that occurred within the narrow confines of the "plain feel"

doctrine.    Here — as in most Terry stop cases — the reasonableness

of the search and seizure is informed by the totality of the

circumstances.        Applying this metric, we affirm the district

court's denial of Rasberry's motion to suppress.

I.    BACKGROUND

             We rehearse the facts as found by the district court at

the suppression hearing, consistent with record support.                      See

United States v. Gonzalez, 609 F.3d 13, 15 (1st Cir. 2010).                   For


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some years, Paul Wolf, a DEA agent, had been on the trail of a

major drug dealer known to him only as "Champagne."                    Though

Champagne proved elusive, Wolf finally got a lead indicating that

he was in fact a man named Todd Rasberry.               With the help of a

cooperating source, Wolf was able to track down one of Rasberry's

accomplices while she was making drug deliveries in Portland,

Maine.    When Wolf confronted the accomplice, she surrendered the

heroin she was carrying and told Wolf that he would find Rasberry,

along    with   more   drugs,   at   a   motel   room   she   had   rented   in

Scarborough, Maine.       The accomplice gave Wolf a key to the room

and consented to its search.

            Accompanied by other officers (federal and local), Wolf

proceeded to the motel where Rasberry was allegedly ensconced.

The officers knew that Rasberry had a criminal history including

drug and weapons charges, and he had been arrested only a few

months earlier at a party where guns were present.              As a result,

the officers were armed and wore ballistic vests.

            When the officers arrived at the motel, Wolf tried the

room key that he had been given, but discovered that it did not

work.     Once he knocked, though, Rasberry opened the door and

acknowledged that he was a guest in the motel room (which had been

rented by the woman with whom Wolf had spoken).           The officers told

Rasberry that they were there to search the premises and that,

although he was not under arrest, he would be detained while they


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conducted the search.        One officer placed Rasberry's hands behind

his back and handcuffed him; he then patted down only the portion

of Rasberry's lower back that Rasberry might be able to reach

despite being handcuffed.        Two other officers, with weapons drawn,

conducted a sweep of the premises to make certain that nobody else

was present.

            For roughly twenty minutes, the officers searched the

motel room with great care.            They found plastic sandwich bags,

needles, and a digital scale, but no drugs.                  With the search

winding down, Rasberry asked if the handcuffs could be removed.

Wolf replied that before he could remove the handcuffs, he had to

make sure that Rasberry did not have a weapon.

            As Wolf performed a pat-down, he felt (in the groin area

of Rasberry's shorts) a hard, round object about the size of a

softball.        Wolf inquired as to the nature of the object, and

Rasberry responded that it was part of his anatomy. At that point,

Wolf — confident that the object was not part of Rasberry's anatomy

but,    rather,    was    contraband   —   placed   Rasberry   under    arrest.

Reaching into Rasberry's undershorts, Wolf extracted a ball of

baggies containing what appeared to be controlled substances.                A

field    test    subsequently    confirmed     that   some   of   the   baggies

contained heroin and others contained cocaine.

            In due course, a federal grand jury sitting in the

District    of    Maine    returned    a   three-count   indictment     against


                                       - 4 -
Rasberry for various controlled substance offenses.                 Rasberry

moved to suppress the drugs seized from his person, arguing that

the search and seizure had violated his Fourth Amendment rights.

See U.S. Const. amend. IV.        The district court held a hearing at

which Wolf and his three fellow officers testified.          The district

court took the matter under advisement and later denied the motion

to suppress.      In its order, the court held, in substance, that

what had transpired constituted a lawful Terry stop; that placing

Rasberry in handcuffs was reasonably necessary to ensure the

officers' safety; and that the duration of the detention was

reasonable because the officers were diligently searching the room

during that interval.       Finally, the court upheld the seizure of

the drugs from Rasberry's undershorts on alternative grounds:

first,   the    court   adopted   the   argument,   put   forward    by   the

government, that the drugs were lawfully seized under the "plain

feel" doctrine; and second, the court concluded that, in light of

the totality of the circumstances, the officers had probable cause

to arrest Rasberry, search him incident to his arrest, and seize

the drugs.

             Rasberry proceeded to enter a conditional guilty plea,

see Fed. R. Crim. P. 11(a)(2), to a single count of possession of

heroin with intent to distribute, see 21 U.S.C. § 841(a)(1). After

accepting      Rasberry's   conditional    plea   (explicitly   preserving

Rasberry's right to appeal the denial of his suppression motion),


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the district court imposed a 138-month term of immurement.                     The

government then dismissed the other two counts of the indictment,

and this timely appeal followed.

II.   ANALYSIS

             Our   standard     of     review     is     familiar.      Ultimate

constitutional     determinations     with   respect     to   issues    such   as

reasonable suspicion and probable cause engender de novo review.

See Ornelas v. United States, 517 U.S. 690, 699 (1996); United

States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007).                   And while

the district court's other conclusions of law are also reviewed de

novo, its factual findings must be accepted unless they are clearly

erroneous.     See United States v. Chhien, 266 F.3d 1, 5 (1st Cir.

2001).   Determinations about witness credibility are inherently

fact-based and, thus, are peculiarly within the competence of the

district court.     See United States v. Baldacchino, 762 F.2d 170,

175 (1st Cir. 1985).

             As a practical matter, Rasberry's asseverational array

can be divided into four parts.              First, he asserts that his

detention in the motel room exceeded the lawful scope of a Terry

stop.    Second, he asserts that the pat-down during which the

softball-sized     object     was    discovered    was    conducted      without

reasonable suspicion.       Third, he asserts that the seizure of the

softball-sized object was not justified under the "plain feel"

doctrine.     Fourth, he asserts that the search of his undershorts


                                     - 6 -
was so invasive that it offended both his dignity and his right to

privacy under the Fourth Amendment.      We examine these assertions

one by one.

                      A.   The Scope of the Stop.

          The Fourth Amendment guarantees "[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures."        U.S. Const. amend.

IV. This constitutional protection does not pretermit all searches

and seizures, but only those that are unreasonable.        See Terry,

392 U.S. at 9.   A brief investigatory stop "based on a reasonable

suspicion that criminal activity may be afoot does not violate the

Fourth Amendment, even in the absence of probable cause."       United

States v. Pontoo, 666 F.3d 20, 27 (1st Cir. 2011) (citing Terry,

392 U.S. at 29-30).    Such stops are commonly called Terry stops.

          In contrast to a Terry stop, an arrest requires that the

detaining officer have probable cause to believe that a crime has

been committed. See Hayes v. Florida, 470 U.S. 811, 815-16 (1985);

United States v. Chaney, 647 F.3d 401, 408 (1st Cir. 2011).

Probable cause is a prerequisite not only for a formal arrest but

also for a de facto arrest.     See Chaney, 647 F.3d at 408.

          Judicial review of a Terry stop involves a "two-step

appraisal."   Pontoo, 666 F.3d at 26.     To begin, the stop must be

justified at its inception.      See United States v. Acosta-Colon,

157 F. 3d 9, 14 (1st Cir. 1998).     Then, as the stop proceeds, the


                                 - 7 -
officers' actions must be "reasonably related in scope to the

circumstances which justified the interference."       Id.   (quoting

United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997)).

          Rasberry does not dispute that — at the moment the motel

room was entered — the officers had reasonable suspicion sufficient

to initiate a Terry stop.      Instead, Rasberry's challenge to the

lawfulness of the stop focuses on the events that subsequently

transpired.   He submits that the behavior of the officers (such as

placing him in handcuffs and brandishing weapons) and the duration

of the stop (about twenty minutes) pushed the stop past the

boundaries of a lawful Terry stop and combined to transmogrify the

stop into a de facto arrest.

          In this case, the distinction between a Terry stop and

a de facto arrest is of decretory significance.       After all, the

government concedes that the officers did not have probable cause

to arrest Rasberry at the moment they entered the motel room.      We

turn, then, to the proper characterization of the events.

          Because a Terry stop allows an individual to be detained

without probable cause, the police actions associated with the

stop must be less intrusive than those that are permissible in the

course of an arrest.   See Pontoo, 666 F.3d at 30.   If a stop begins

as a Terry stop but becomes too intrusive, it will morph into a de

facto arrest.   See Hayes, 470 U.S. at 815-16; Acosta-Colon, 157

F.3d at 14.     The dispositive question is whether a reasonable


                                - 8 -
person   standing      in    the   suspect's       shoes   would   understand    his

position "to be tantamount to being under arrest."                  United States

v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).

             To   be   sure,       there    are    no   "scientifically    precise

benchmarks for distinguishing between temporary detentions and de

facto arrests."        Morelli v. Webster, 552 F.3d 12, 20 (1st Cir.

2009).   In determining the category into which a particular set of

events falls, a reviewing court necessarily must consider the

totality of the circumstances.                See Chhien, 266 F.3d at 6; see

also United States v. Cortez, 449 U.S. 411, 417 (1981) (directing

consideration of "the whole picture").                     An inquiry into the

totality of the circumstances is informed by the reasonableness of

the officers' conduct in light of the situation that they face.

See Terry, 392 U.S. at 19-20; Acosta-Colon, 157 F.3d at 15.

Typically, such an inquiry involves examining, among other things,

"the length of the detention, the restrictions placed on an

individual's      personal     movement,       the   force   (if   any)   that   was

exerted, the information conveyed to the detainee, and the severity

of the intrusion."          United States v. Sowers, 136 F.3d 24, 28 (1st

Cir. 1998).

             Notwithstanding the limitations on Terry stops, officers

must be allowed, during the course of such a stop, to take measures

that are reasonably calculated to protect themselves or others

from harm.    See Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir. 2004);


                                           - 9 -
Acosta-Colon, 157 F.3d at 18.         To pass muster, though, such

prophylactic   measures   must   be   proportionate    to    the     perils

associated with the particular circumstances.         See Pontoo, 666

F.3d at 30.    Security precautions, such as the use of handcuffs,

must be based on the officers' "reasonable belief that the use of

such restraints was necessary to carry out the legitimate purposes

of the stop without exposing law enforcement officers, the public,

or the suspect himself to an undue risk of harm."           Acosta-Colon,

157 F.3d at 19.     The inquiry is case-specific: although often

indicative of an arrest, see id. at 18, "neither the use of

handcuffs nor the drawing of a weapon necessarily transforms a

valid Terry stop into a de facto arrest," United States v. Fornia-

Castillo, 408 F.3d 52, 64 (1st Cir. 2005).

          Concerns for officer safety are heightened in the close

confines of a motel room.   See Chaney, 647 F.3d at 410.           There is

a pressing "need for officers to safely secure the scene."           Id. at

410.   Moreover, the motel room in which Rasberry was found had

very thin walls, and any gunfire would have posed a grave danger

to occupants of adjoining rooms.      To cinch matters, Rasberry was

a suspected drug trafficker, and "[t]he connection between drugs

and violence is . . . legendary."         United States v. Arnott, 758

F.3d 40, 45 (1st Cir. 2014).       This legendary connection was of

particular concern in this case because the officers were entering

an unfamiliar space to confront a suspect who they knew had a


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criminal history involving firearms and who had recently been

present in locations where guns were found.

          Taking the total mix of facts into account, we agree

with the district court that the officers had a reasonable basis

to suspect that Rasberry might be armed and dangerous. By entering

the premises with guns drawn and immediately handcuffing Rasberry,

the officers acted responsibly to ensure their safety and the

safety of others as their search of the premises took place.           At

the same time, the officers made it clear to Rasberry that he was

not under arrest but, rather, was simply being detained while they

searched the room.    We discern no error, clear or otherwise, in

the district court's determination that the officers' execution of

the stop was within the permissible scope of a Terry stop.             See

Pontoo, 666 F.3d at 30; Chaney, 647 F.3d at 410.

          Nor   did   the   duration   of   the   encounter   exceed   the

parameters of a lawful Terry stop.       A twenty-minute detention may

be lengthier than the paradigmatic Terry stop, but the length of

a Terry stop, taken in a vacuum, does not convert an otherwise

lawful Terry stop into a de facto arrest.           See United States v.

Owens, 167 F.3d 739, 749 (1st Cir. 1999).         Whether a Terry stop is

of an appropriate duration is gauged by whether the officers were

"diligently pursu[ing] a means of investigation that was likely to

confirm or dispel their suspicions quickly, during which time it

was necessary to detain the defendant."       United States v. Sharpe,


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470 U.S. 675, 686 (1985).      Here, the district court supportively

found that the officers were assiduously engaged in activities in

furtherance of the investigation for the entire time of the

detention.     Seen in this light, the court did not err in finding

that the twenty-minute length of the stop failed to convert it

into a de facto arrest.    See Owens, 167 F.3d at 750 (finding stop

that lasted fifty minutes was not a de facto arrest); United States

v. McCarthy 77 F.3d 522, 531 (1st Cir. 1996) (finding seventy-five

minute detention remained a Terry stop because officers were not

"engaged in dilatory tactics" and "their investigative efforts

[were] reasonable under the circumstances").

             That ends this aspect of the matter.   The stop in this

case was proportional to the circumstances and lasted no longer

than was reasonably necessary to search the motel room and dispel

suspicion that illegal drugs were hidden there.     Consequently, the

district court did not err in concluding that the stop was a lawful

Terry stop.

                          B.   The Pat-Down.

             In preparation for removing Rasberry's handcuffs, Wolf

undertook a full pat-down of Rasberry's person.     Rasberry contends

that there was no legal justification for this pat-down because

the initial frisk, performed when he was first handcuffed, sufficed

to dispel any suspicion that he might be armed. The district court

rejected this contention, and so do we.


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          A police officer may frisk a suspect on reasonable

suspicion that the suspect is armed and dangerous.       See United

States v. Scott, 270 F.3d 30, 41 (1st Cir. 2001); see also Terry,

392 U.S. at 27.   In this instance, the full pat-down was preceded

by an initial frisk some twenty minutes earlier.       The district

court found, however, that the initial frisk was confined to the

area of Rasberry's lower back.      This finding is consistent with

the officers' testimony at the suppression hearing, and it is not

clearly erroneous. And where, as here, the first frisk is limited,

it will not automatically dispel a reasonable suspicion that the

suspect may be armed.     See United States v. Osbourne, 326 F.3d

274, 278 (1st Cir. 2003).   In appropriate circumstances, a second

frisk may be justified.   See id.   This is such a case: because the

first frisk was restricted to Rasberry's lower back, we cannot say

that the district court erred in finding that Wolf had a reasonable

suspicion that Rasberry might be carrying a weapon elsewhere on

his person.

          C.   The Seizure of the Softball-sized Object.

          As he was conducting the second pat-down, Wolf felt a

softball-sized object hidden in Rasberry's undershorts.       After

Rasberry dissembled by insisting that the object was part of his

anatomy, Wolf arrested him and proceeded to extract the object.

Rasberry challenges the constitutionality of this seizure.




                              - 13 -
           The district court upheld the seizure on alternative

grounds.   The first of these grounds is questionable.              The court

— following the government's lead — invoked the "plain feel"

doctrine, under which a police officer can seize an object if, by

touch, its incriminating character is "immediately apparent."

United States v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994) (quoting

Dickerson, 508 U.S. at 375). Thus, the doctrine permits an officer

who conducts a lawful pat-down of a suspect's outer clothing to

seize an object if its incriminating character is immediately

apparent by touch alone.

           Rasberry   argues   that,   due    to    the   plastic   packaging

surrounding the drugs, the incriminating nature of the object in

his shorts could not have been immediately apparent to Wolf.               This

argument has a patina of plausibility, but we need not address it:

the seizure is fully justified on the alternative ground elaborated

by the district court.      Consequently, we turn to that alternative

ground.

           The   district   court   held     that   the   totality    of    the

circumstances known to Wolf at the time of the pat-down gave him

probable cause to arrest Rasberry and, thus, allowed him to seize

the softball-sized object incident to Rasberry's arrest.                   This

holding finds ample support in the record.

           It is common ground that a Terry stop can evolve to a

point at which there is probable cause to make an arrest.                   See


                                 - 14 -
Terry, 392 U.S. at 25.      At that juncture, the officer can search

the suspect for evidence or contraband incident to the arrest. See

id.   That is precisely what happened here.

           Probable cause is a "fluid concept" that is "not readily,

or even usefully, reduced to a neat set of legal rules."         Illinois

v. Gates, 462 U.S. 213, 232 (1983).       It "requires only the kind of

fair probability on which reasonable and prudent [people,] not

legal technicians, act."     Kaley v. United States, 134 S.Ct. 1090,

1103 (2014) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013))

(internal quotation marks omitted).             An objective standard is

employed to determine whether an officer has probable cause to

effect an arrest.     See Cox v. Hainey, 391 F.3d 25, 31 (1st Cir.

2004).    An inquiring court must examine the events leading up to

the arrest and then determine "whether these historical facts,

viewed from the standpoint of a reasonable police officer, amount

to probable cause."      Ornelas v. United States, 517 U.S. 690, 696

(1996).

           Here,   the   totality   of    the    circumstances   militates

strongly in favor of a finding that probable cause existed to

arrest Rasberry.    The officers already had recovered some drugs

from Rasberry's accomplice (the renter of the motel room).            She

had told them that Rasberry was in the room and was in possession

of additional drugs.      When the officers reached the motel, they

found Rasberry in the designated room — confirming to that extent


                                 - 15 -
the reliability of the accomplice's account.        See Gates, 462 U.S.

at 245 (explaining that tip containing information subsequently

found to be accurate can be a factor giving rise to probable

cause).     In   the   motel   room,   the   officers'    search     revealed

accoutrements of the drug trade (specifically, plastic baggies,

needles, and a digital scale), giving rise to a plausible inference

that a drug-distribution operation was afoot.            See, e.g., United

States v. Fermin, 771 F.3d 71, 79 n.6 (1st Cir. 2014).

            The officers had been told by Rasberry's accomplice that

there were drugs in the motel room and, after scouring the room in

vain, the only place that had not yet been searched was Rasberry's

person. While patting Rasberry down, Wolf came across a suspicious

object in Rasberry's undershorts — an object that Wolf reasonably

suspected contained drugs. This suspicion was heightened by Wolf's

knowledge that drug dealers frequently conceal drugs in their

undergarments.    See United States v. Cofield, 391 F.3d 334, 337

n.2 (1st Cir. 2004) (discussing how suspects often hide drugs in

their underwear).      When Rasberry was asked directly about the

softball-sized object, he responded with an obvious lie.                    A

suspect's   blatant    prevarication    in   response    to   an    officer's

queries can support an inference of probable cause.                See, e.g.,

United States v. Brown, 500 F.3d 48, 57 (1st Cir. 2007).

            To say more would be to paint the lily.        Here, a host of

factors pointed unerringly to a reasonable inference that Rasberry


                                  - 16 -
was hiding drugs in his skivvies.        In the circumstances at hand,

the district court did not err in finding that Wolf had probable

cause to arrest Rasberry and to seize the softball-sized object

incident to his arrest.

                    D. The Intrusiveness Claim.

          Rasberry makes a final argument: that the search of his

undershorts was overly invasive and degrading and, thus, abridged

his Fourth Amendment rights.    Because this argument is raised for

the first time on appeal, our review is for plain error.           See

United States v. Madsen, 809 F.3d 712, 717 (1st Cir. 2016).      Plain

error is plainly absent here.

          The reasonableness of an invasive search depends on

whether the totality of the circumstances justifies the degree of

the intrusion.   See Spencer v. Roche, 659 F.3d 142, 146 (1st Cir.

2011); Cofield, 391 F.3d at 336.           To justify a search of a

particularly intimate area, an officer must, at a minimum, have

reasonable suspicion that the person detained is hiding contraband

there.   See United States v. Barnes, 506 F.3d 58, 62 (1st Cir.

2007).   Wolf — having just encountered a suspicious object near

Rasberry's groin — had excellent reason to think that Rasberry had

contraband hidden in his undershorts.

          Although extracting the softball-sized object was, in

Wolf's phrase, "awkward," there is no evidence that the extraction

was conducted in a needlessly degrading or humiliating fashion.


                                - 17 -
Cf. Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (finding strip

search   of     female     detainee    in     front        of   male    officers

unconstitutional).       Wolf and Rasberry were of the same gender and

Wolf withdrew the softball-sized object in the privacy of a motel

room, allowing Rasberry to remain clothed as he did so.                  It was

Rasberry's    decision    to   hide   contraband      in    such   an   intimate

location, and the seizure was performed in a reasonable manner.

No more was exigible to keep Rasberry's Fourth Amendment rights

inviolate.

III.   CONCLUSION

             We need go no further.         Rasberry's appeal yields only

bitter fruit and, therefore, the judgment of the district court is



Affirmed.




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