UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 97-1845
UNITED STATES OF AMERICA,
Appellee,
v.
WAYNE O. SOWERS,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Shadur,* Senior District Judge. _____________________
_________________________
William Maselli for appellant. _______________
Margaret D. McGaughey, Assistant United States Attorney, _______________________
with whom Jay P. McCloskey, United States Attorney, and Jonathan ________________ ________
A. Toof, Assistant United States Attorney, were on brief, for ________
appellee.
_________________________
February 6, 1998
_________________________
__________
*Of the Northern District of Illinois, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Wayne O. SELYA, Circuit Judge. _____________
Sowers challenges his conviction for possession of cocaine with
intent to distribute, see 21 U.S.C. 841(a)(1), (b)(1)(B), and ___
(b)(1)(C) (1994), by resurrecting some but not all of the
arguments advanced in his unsuccessful motion to suppress
evidence.1 In service of this end, the appellant argues that the
trial court erred in concluding that neither the detention of the
appellant and of a passenger in the vehicle that he was driving
nor a warrantless search of the appellant's jacket, worn by the
passenger, produced a cognizable constitutional insult.
Concluding, as we do, that the district court properly denied the
appellant's pretrial suppression motion, we affirm the judgment
of conviction.
I. BACKGROUND I. BACKGROUND
On September 21, 1996, at approximately 10:00 p.m.,
Maine State Trooper Kevin Curran was traveling northbound along a
desolate stretch of the Maine Turnpike. While passing a Toyota,
he noticed a loud noise emanating from the vehicle's exhaust
system. His interest piqued, Curran also observed a missing
front license plate. He slowed and activated his cruiser's blue
flashing lights. The Toyota stopped in the breakdown lane.
Curran approached the vehicle from the rear and asked
the operator (Sowers) for his papers. Sowers produced a valid
license, along with a registration listing Tammy Gayton as the
____________________
1To the extent that arguments made at the suppression
hearing are not renewed on appeal, we deem them abandoned. See ___
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). _____________ _______
2
Toyota's owner. When Curran asked the young woman seated next to
Sowers to produce some form of identification, she responded that
she was Tammy Gayton, but acknowledged that she had nothing on
her person to confirm that fact. Unsure as to the passenger's
true identity, Curran instructed her to exit the vehicle and
instructed Sowers to remain seated. Both complied.
After physically separating the two occupants, Trooper
Curran noticed that they both appeared extremely nervous. He
thus questioned each of them as to the extent, purpose, and
details of their travels. When substantial discrepancies
developed, his suspicions heightened.
Curran asked the woman to remain standing next to his
police cruiser while he initiated a cursory background check,
endeavored to verify her identity, and prepared citations for the
defective muffler, see Me. Rev. Stat. Ann. tit. 29-A 1912(1), ___
(4) (West 1993), and the missing license plate, see id. 452(a) ___ ___
(West 1987). The background check revealed that Sowers's
driver's license was valid and that the Toyota was duly
registered to Gayton. Curran also obtained a rough physical
profile of Gayton, which seemed to match the woman whom he had
detained.
Despite receipt of this information, Curran remained
dissatisfied with the conflicting answers that he had received in
response to his earlier questioning. He apprised Gayton of his
lingering suspicions and sought permission to search her vehicle.
Gayton initially refused to consent to a search, but eventually
3
relented after Curran informed her that he would summon a
narcotics dog to perform a sniff-search. After giving her
written consent to the vehicle search, Gayton's anxiety became
more pronounced.
Before attempting to search the vehicle, Curran radioed
for assistance. While awaiting backup, Curran performed a pat-
down search of Gayton's person. In the course of that search, he
felt a hard, cylindrical object through the material of the
jacket she was wearing. Curran queried Gayton about the item,
but she disclaimed any knowledge, stating that neither the jacket
nor its contents belonged to her. Curran removed the object from
the jacket pocket. It proved to be a package containing a
substance similar in appearance and consistency to cocaine.
Curran promptly arrested both Sowers (age 42) and Gayton (age
18).
Trooper Frank Holcomb arrived on the scene at
approximately 10:40 p.m. and Curran then searched the Toyota. He
found no contraband. After the troopers transported the two
suspects to the Androscoggin County Jail, Sowers admitted that he
had traveled to Massachusetts and bought quantities of both
powdered and crack cocaine.
II. PROCEEDINGS BELOW II. PROCEEDINGS BELOW
On October 10, 1996, a federal grand jury returned an
indictment that charged Sowers with possessing or conspiring to
possess powdered and crack cocaine, with intent to distribute.
The appellant moved to suppress the evidence seized during and
4
after the roadside events. He argued, inter alia, that the _____ ____
protracted investigative stop constituted an unlawful detention,
and that in all events the pat-down search was unjustified. He
also sought to exclude the incriminating statements made by him
while in custody on the ground that those statements were the
fruits of an illegal detention.
Following an evidentiary hearing, the district court
denied the suppression motion. See United States v. Sowers, 1997 ___ _____________ ______
WL 97104 (D. Me. Feb. 21, 1997). The court ratified both the
stop and the ensuing roadside detention, see id. at *4, and also ___ ___
determined that Sowers lacked standing to challenge the pat-down
search, see id. at *5.2 ___ ___
In short order, a jury found the appellant guilty on
two counts of the indictment.3 The district court sentenced
Sowers to a 46-month term of imprisonment. This appeal followed.
III. DISCUSSION III. DISCUSSION
In addressing orders granting or denying suppression,
we scrutinize the trial court's factual findings for clear error
and subject its ultimate constitutional conclusions to plenary
____________________
2Although use of the term "standing" in this context may
offend a legal purist, we have employed that word as "a shorthand
method of referring to the issue of whether the defendant's own
Fourth Amendment interests were implicated by the challenged
governmental action." United States v. Sanchez, 943 F.2d 110, _____________ _______
113 n.1 (1st Cir. 1991); accord United States v. Kimball, 25 F.3d ______ _____________ _______
1, 5 n.1 (1st Cir. 1994); United States v. Gomez, 770 F.2d 251, _____________ _____
253 n.1 (1st Cir. 1985); United States v. Lochan, 674 F.2d 960, _____________ ______
963 n.4 (1st Cir. 1982). We follow that praxis here.
3The government had brought, and thereafter dropped, a
conspiracy count.
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review. See Ornelas v. United States, 116 S. Ct. 1657, 1663 ___ _______ ______________
(1996); United States v. Schaefer, 87 F.3d 562, 565 & n.2 (1st ______________ ________
Cir. 1996); UnitedStates v.Zapata, 18F.3d 971, 975(1st Cir.1994). ____________ ______
A. A. __
We open our discussion of the merits by addressing the
appellant's charge that the officer's detention of the motorists
amounted to a de facto arrest. Sowers carefully cabins this __ _____
argument. He does not contest Judge Carter's finding that the
initial stop, for admitted equipment violations, was justified.
He argues instead that the length and tenor of the detention at
some point transmogrified a lawful Terry stop, see Terry v. Ohio, _____ ___ _____ ____
392 U.S. 1 (1968), into an unlawful de facto arrest. Once Sowers __ _____
produced a valid driver's license and registration, this thesis
runs, Curran no longer had any valid basis to detain the
motorists and all the events that transpired thereafter
Gayton's removal from the vehicle, the subsequent questioning of
both individuals, the pat-down search, the seizure of the
contents of the jacket's pockets, the arrest, and the post-arrest
interrogation were beyond the pale.
The government says that Sowers lacks standing to voice
much of this plaint. A defendant ordinarily cannot base a
constitutional claim on a violation of a third person's rights.
See Rakas v. Illinois, 439 U.S. 128, 138-40 (1978); United States ___ _____ ________ _____________
v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994); United States v. _______ _____________
Santana, 6 F.3d 1, 8-9 (1st Cir. 1993). Therefore, to the extent _______
that Sowers's challenge rests on Gayton's privacy interests, it
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is barred.
Nonetheless, there is more to Sowers's challenge than
meets the prosecution's eye. Once the police halt a vehicle on
the highway, both the driver and the passengers are in a
practical sense subject to the officers' authority. See Whren v. ___ _____
United States, 116 S. Ct. 1769, 1772 (1996) (explaining that all _____________
occupants of a vehicle are subjected to a seizure, within the
scope of the fourth amendment, when a police officer effects an
investigatory stop of the vehicle). Thus, any one of them may
challenge his own detention regardless of whether he was the
immediate target of the investigation or whether he had a privacy
interest in the vehicle itself. See Kimball, 25 F.3d at 5. This ___ _______
means that the appellant's challenge of his own detention is
properly before us.
On this issue, the appellant acknowledges that Terry _____
sanctions a brief detention of an individual to confirm or allay
a police officer's reasonable suspicions. 392 U.S. at 20-21.
Still, he contends that Trooper Curran's persistence converted an
initially lawful Terry stop into a de facto arrest based on less _____ __ _____
than probable cause (and, hence, unlawful). This is a
commonplace argument, the evaluation of which tends to be case-
specific. See Zapata, 18 F.3d at 975 (observing that there are ___ ______
no precise formulae that enable courts to distinguish between
investigatory stops and de facto arrests). __ _____
The effort to locate a particular sequence of events
along the continuum of detentions begins with a determination as
7
to whether the officer's actions were justified at the inception.
See Terry, 392 U.S. at 19-20; United States v. McCarthy, 77 F.3d ___ _____ _____________ ________
522, 530 (1st Cir. 1996). In this case, the propriety of the
initial Terry stop cannot be gainsaid. The appellant's argument _____
hinges, therefore, on whether the actions undertaken by the
officer following the stop were reasonably responsive to the
circumstances justifying the stop in the first place, as
augmented by information gleaned by the officer during the stop.
See United States v. Sharpe, 470 U.S. 675, 682 (1984); United ___ ______________ ______ ______
States v. Stanley, 915 F.2d 54, 55 (1st Cir. 1990). To answer ______ _______
this query, an inquiring court must consider the totality of the
circumstances and "balance[] the nature and quality of the
intrusion on personal security against the importance of the
governmental interests alleged to justify the intrusion." United ______
States v. Hensley, 469 U.S. 221, 228 (1985). ______ _______
On this question, the district court supportably found
that Curran's level of warranted suspicion gradually escalated as
his encounter with Sowers and Gayton progressed. Based on
unfolding events, the trooper's attention (and, thus, his
reasonable suspicions) shifted away from the equipment violations
that prompted the initial stop toward a belief that the detainees
were engaged in more serious skulduggery. Such a shift in focus
is neither unusual nor impermissible. See, e.g., Zapata, 18 F.3d ___ ____ ______
at 974. In his testimony which the lower court credited, see ___
Sowers, 1997 WL 97104, at *4 Curran recited the particularized ______
bases for his dawning belief that Sowers and Gayton were engaged
8
in criminal misconduct. He pointed, for example, to Gayton's
inability to confirm her identity, the pair's excessive
nervousness, and the conflicting stories that they told. We are
not at liberty blithely to second-guess the district court's
credibility determinations. See Zapata, 18 F.3d at 975. ___ ______
Consequently we cannot say, in light of what the lower court
found to be the circumstances obtaining on the night in question,
that the officer's continued pursuit of his mounting suspicions
was unreasonable. See Davis v. United States 409 F.2d 458, 460 ___ _____ _____________
(D.C. Cir. 1969) (remarking that "conduct innocent in the eyes of
the untrained may carry entirely different `messages' to the
experienced or trained observer"); see also Stanley, 915 F.2d at ___ ____ _______
56.
By the same token, we are not inclined to hold that
Trooper Curran, in acting on these suspicions, perpetrated an
impermissible de facto arrest. In assaying such a claim, a court __ _____
must weigh, among other factors, 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. See McCarthy, 77 ___ ________
F.3d at 530. Here, no force or show of force occurred.4 The
restriction on Sowers's freedom of movement namely, the
____________________
4The appellant suggests that Curran's mention of a canine
sniff-search amounted to a threat, and thus was a show of force.
This argument never takes wing, however, because that
conversation took place with Gayton, out of Sowers's earshot.
Absent any communication, the "threat" could not have constituted
a show of force as to Sowers. __ __ ______
9
trooper's instruction that he remain in the vehicle was not
onerous. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 886 ___ ____ ________ ______
(1997); Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per ____________ _____
curiam).
To sum up, the Supreme Court has cautioned that
reasonable suspicion, like probable cause, is not amenable to
technical formulations that purport to identify the precise types
of conduct or sets of circumstances that will or will not permit
a police officer to stop and detain an individual. See Ornelas, ___ _______
116 S. Ct. at 1661. To the contrary, the Justices have looked
favorably upon a practical, commonsense approach to the issue of
reasonable suspicion. See id. Viewing the facts of this case in ___ ___
a down-to-earth manner, we conclude that the district court did
not err in finding that Curran had adequate justification to
prolong the stop beyond the point at which Sowers produced his
papers and thereafter beyond the point at which Gayton's identity
was nominally corroborated. See, e.g., United States v. Young, ___ ____ ______________ _____
105 F.3d 1, 6 (1st Cir. 1997); McCarthy, 77 F.3d at 530. Even ________
though at least thirty minutes elapsed between the time of the
stop and the discovery of what appeared to be contraband, we see
no basis for disrupting the district court's founded conclusion
that no de facto arrest transpired. See United States v. Quinn, __ _____ ___ ______________ _____
815 F.2d 153, 157 (1st Cir. 1987) (remarking that "there is no
talismanic time beyond which any stop initially justified on the
basis of Terry becomes an unreasonable seizure under the fourth _____
amendment") (quoting United States v. Davies, 768 F.2d 893, 901 ______________ ______
10
(7th Cir. 1985)); see also McCarthy, 77 F.3d at 530 (chronicling ___ ____ ________
cases in which detentions of much longer duration than thirty
minutes have been approved). Put another way, the court was not
bound to hold that the relatively short-lived and, by all
indicators, non-confrontational detention that preceded the
officer's discovery of the apparent contraband constituted the
functional equivalent of a formal arrest.
B. B. __
The appellant also challenges the pat-down search of
Gayton, and in particular, the search of a jacket that he owned
which Gayton was wearing at the time. The district court
rejected this challenge. Relying on Frazier v. Cupp, 394 U.S. _______ ____
731 (1969), and United States v. Alewelt, 532 F.2d 1165 (7th Cir. _____________ _______
1976), it concluded that the appellant, "upon lending his jacket
to Gayton, relinquished control over the jacket and forfeited the
reasonable expectation of privacy he had in the jacket." Sowers, ______
1997 WL 97104, at *5. Mindful that we are not chained to the
lower court's rationale but may affirm on any alternative ground
supported by the record, see Hachikian v. FDIC, 96 F.3d 502, 504 ___ _________ ____
(1st Cir. 1996), we choose to follow a different analytic path.
Consequently, we take no view of the district court's
determination that Sowers, having lent his jacket, could no
longer claim a reasonable expectation of privacy vis- -vis the
contents of its pockets.
The fundamental flaw in the appellant's argument is
that it misapprehends the character of a Terry stop. The pat- _____
11
down search that a Terry stop entails is a search of the person. _____
See Terry, 392 U.S. at 24-25 (describing the permitted pat-down ___ _____
search as "a limited search of the outer clothing for weapons"
and recognizing that such a search "constitutes a severe, though
brief, intrusion upon cherished personal security"); see also 4 ___ ____
Wayne R. Lafave, Search and Seizure 9.5(b) (3d ed. 1996). To ___________________
say that such a search involves a separate and distinct search of
the detainee's clothing distorts the Terry principle. Thus, the _____
appellant, who was not himself subjected to the pat-down search,
cannot bottom his Fourth Amendment challenge on that search. See ___
Kimball, 25 F.3d at 5 (holding that "a proponent of a motion to _______
suppress must prove that the challenged governmental action
infringed upon his own Fourth Amendment rights"). So viewed, any
possessory interest that Sowers retained in the jacket which
Gayton was wearing during the search is an irrelevancy.
IV. CONCLUSION IV. CONCLUSION
We need go no further. Having combed the record, we
are fully persuaded that the district court did not err in
denying Sowers's motion to suppress. The judgment of conviction
must therefore be
Affirmed. Affirmed. ________
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