UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 13-cr-31-JL Opinion No. 2014 DNH 150 Frederick Drane
MEMORANDUM ORDER
This case raises questions about the scope of police
searches conducted during two separate traffic stops of the
defendant, Frederick Drane. In moving to suppress the evidence
seized in these encounters, Drane argues that the police
“exceed[ed] the scope of the traffic stop” by, during the first
incident, asking him whether he had drugs on his person and then
conducting a pat-down search and, during the second incident,
questioning Drane and his co-defendant, Holly Lebo, about drugs.
While Lebo consented to the search of the car that allegedly
turned up the incriminating evidence, Drane argues that her
consent was invalid because the police obtained it only after
having “deprived him of any chance to object to the search as
somebody with an equal property interest in the car.” By way of
a subsequent motion to suppress, filed just prior to trial, Drane
also seeks to exclude his alleged statement to the officers
searching the car that they would find a crack pipe in the
driver’s side door, arguing that the statement was obtained in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). After two evidentiary hearings, one on each motion, the
court orally denied both motions to suppress. This order serves
to set forth the bases for those rulings in greater detail. See,
e.g., United States v. Joubert, ___ F. Supp. 2d ___, 2014 DNH
046, at 2 n.1 (noting a district court’s authority to later
reduce its prior oral findings and rulings to writing). As fully
explained below, the conduct of the police during the traffic
stops did not violate Drane’s rights against unreasonable search
or seizure under the Fourth Amendment. Based on the
circumstances giving rise to the first stop, and the behavior of
Drane and his brother during the stop--which suggested Drane’s
recent involvement in a violent altercation over a drug-related
debt--the police had reasonable suspicion both to ask him whether
he had drugs on his person and to pat him down for weapons. In
any event, at the time of the first stop, Drane was subject to
bail conditions that required him to submit to searches of his
person without any degree of suspicion.
Drane’s objection to the evidence allegedly seized in the
second traffic stop stands on even weaker footing. Even were the
court to assume that Drane had a reasonable expectation of
privacy in the vehicle (which had been rented to Lebo without any
authorization allowing Drane to drive it), the police obtained
consent to search the vehicle from Lebo, not from Drane--and
2 Drane has not argued that Lebo’s consent was involuntary. While
Drane invokes the holding of Georgia v. Randolph, 547 U.S. 103,
120 (2006), that “a warrantless search of a shared dwelling for
evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable on the basis
of consent given to the police by another resident,” he has
provided no authority applying this rule to a shared vehicle and,
in any event, he does not claim that he objected to the search,
only that he was never asked whether he did. But Randolph
expressly holds that a “potential objector, nearby but not
invited to participate in the . . . colloquy [over consent],
loses out” on his chance to object--at least where, as Drane
concedes is the case here, “there is no evidence that the police
[] removed the potentially objecting [defendant] . . . for the
sake of avoiding a possible objection.” Id. at 121. The bottom
line is that Lebo’s valid consent justified the search of the
vehicle in the second stop. Finally, even if Drane was in
custody when he informed the officers of the presence of the
crack pipe in the vehicle, that statement was not the product of
interrogation, and therefore could be used against Drane at trial
without violating his Fifth Amendment rights.
3 I. Background
The court makes the following findings of fact based on the
testimony and other evidence received at the suppression hearing.
A. First traffic stop (June 2012, Biddeford, Maine)
On the mid-morning of a day in June 2012, James Michael
Penney, a patrol officer for the city of Biddeford, Maine,
received a report of “vehicles stopped in traffic and that there
were males outside of the vehicles physically fighting” at a
nearby intersection known as “Five Points.” As Penney headed
toward the intersection, he spotted one of the vehicles described
in the report, so he maneuvered his cruiser into position behind
the vehicle and activated his flashing lights. The vehicle
promptly pulled over into the driveway of a house. As Penney
pulled his cruiser into the driveway, a man--later identified as
Drane--exited the front driver’s side of the vehicle and began
walking toward the house, despite Penney’s order to stop. Drane
halted, however, at the direction of another man--later
identified as Drane’s brother, Leroy--who exited the front
passenger’s side of the vehicle, exhorting, “Come back, we didn’t
do anything wrong.” In the meantime, a woman--later identified
as Lebo--emerged from the house. Penney approached the men and
asked their names, which he then radioed in to his dispatcher.
Another Biddeford officer, Lawrence Angis, arrived on the scene.
4 Observing blood running down one of Leroy’s hands, the
officers asked the Dranes what had provoked the fight at the Five
Points intersection. In the ensuing conversation, Leroy said
that the fight started over $700 that a married couple, Mark and
Amanda Barton, had borrowed from the Dranes to use as bail money
for Mark Barton. Leroy reported that the Dranes had found the
Bartons at a gas station where, the officers knew, drug and other
criminal activity were prevalent. According to Leroy, the Dranes
had asked the Bartons for repayment, but Mark Barton refused,
using a racial slur to refer to Leroy. The Bartons then left in
their vehicle, Leroy said, but he and his brother followed in
their car until both groups reached Five Points. There, Leroy
recounted, he and his brother exited their vehicle to confront
the Bartons, who also left their car, sparking a physical
altercation. Leroy reported that, in this altercation, he cut
his hand, and the front windshield of the Dranes’ vehicle was
smashed by a coffee mug. But, when Officer Angis asked the
Dranes if they wanted to pursue charges based on this incident,
they declined (though they did give the police brief written
statements). Angis also observed that Drane “was sweating
profusely and he was very quiet and seemed very nervous.”
In the meantime, Penney learned via radio that Drane was
not licensed to drive in Maine and that his license in
5 Massachusetts was suspended, as well as that Drane was subject to
bail conditions that prohibited him from operating a motor
vehicle. Penney decided that, as result, he would place Drane
under arrest for unlicensed operation and violation of his bail
conditions. Penney did not immediately do so, however, because
Angis (the other officer who had responded) informed him that the
Maine Drug Enforcement Agency (“Maine DEA,” a state agency) had
an agent en route to the scene. Penney explained that, as a
matter of routine practice, the Biddeford Police Department
immediately reported any drug-related incident to the Maine DEA,
who frequently dispatched an agent to the scene in response.
After what Penney recalls as another “five to ten minutes,”
an agent from the Maine DEA, Michael Reali, arrived on the scene.
There, Reali learned, from Officer Penney, Leroy’s account of the
altercation with the Bartons. Reali also learned, from Officer
Angis, that Drane had been “acting very nervous and sweating.”
Based on this information, Reali suspected that the Dranes and
the Bartons had been fighting over money owed for drugs (rather
than, as Leroy had claimed, for Mark Barton’s bail). In fact,
Reali had been investigating both the Dranes and the Bartons for
suspected drug trafficking.
Reali also knew that Drane was at that point subject to bail
conditions, issued by the Biddeford District Court on May 8,
6 2012, following his appearance on charges including the unlawful
possession of scheduled drugs in violation of Me. Rev. Stat. Ann.
tit. 17-A, § 1107-A. As part of these bail conditions, Drane had
agreed not to use or possess illegal drugs and that, “[i]n order
to determine if [he] ha[d] violated any prohibitions of [the]
bond regarding . . . illegal drugs,” he would “submit to searches
of [his] person, vehicle and residence . . . at any time without
articulable suspicion or probable cause.”
Reali approached Drane, who was “shaking” and “sweating,”
identified himself, and asked whether Drane had any drugs on him.
Drane said he did not. Reali then asked Officers Penney and
Anglis whether they had searched Drane. They said they had not.
When Reali asked Drane, again, whether he had any drugs on his
person, Drane “got really nervous” and gave an answer that was
“shaky” and “inaudible.” Reali then began patting Drane down,
starting at his waistline. Reali felt what seemed to be a “blunt
instrument” in Drane’s pocket; when he declined to identify the
object, Reali pulled it from the pocket, revealing “an 8-inch
piece of sharpened metal, almost like a cut coat hanger.”
Recognizing this as a tool commonly used to scrape out a crack
pipe, Reali asked Drane, again, whether he had any drugs on him.
Drane acknowledged that he had drugs in his underwear. On
Reali’s orders, Drane reached into his pants and pulled out a
7 glassine bag containing what turned out to be nearly 10 grams of
crack cocaine. Officer Penney then placed Drane under arrest for
operating without a license and violation of his bail conditions.
B. Second traffic stop (September 2012, Hampton, New Hampshire)
After midnight on a mid-September evening, Trooper John
Kelly of the New Hampshire State Police was on patrol along
Interstate 95 in Hampton, New Hampshire when he observed a
vehicle traveling more than 80 miles an hour in a 65-mile-an-hour
zone. Kelly began to follow the vehicle, a black Dodge Charger,
in his cruiser, activating its flashing lights and spotlight. As
the Charger pulled to the side of the road, Kelly observed the
driver “jump” from the driver’s seat into the back seat, while
the sole passenger moved from the front passenger seat into the
driver’s seat. As Kelly exited his cruiser and approached the
Charger, he noticed that the man who was now in the back seat
“lying completely down with his eyes closed like he was
sleeping,” while the woman now in the driver’s seat “was
struggling kind of to sit . . . the way the seat was positioned,”
with her feet apparently unable to reach the pedals. As Kelly
eventually learned, the man was Drane, and the woman was Lebo.
Kelly asked Lebo where she had come from, and she responded,
“I was just driving home to Maine.” Because Kelly, who had not
8 been fooled by the seat-switching, knew that Lebo had not in fact
been driving, he asked her to step out of the vehicle so that he
could question her further. During that conversation, Lebo
admitted that Drane had actually been driving, and that they had
switched positions upon seeing Kelly’s cruiser because Drane’s
driver’s license was suspended. Lebo also told Kelly that she
and Drane had been visiting his relatives in Boston’s Mattapan,
neighborhood and were on their way back to their home in Maine.
During Kelly’s conversation with Lebo, Drane “started to
jump out of the car at one point,” but Kelly ordered him to stay
inside the vehicle. Kelly also noticed that Drane “was fidgety
in his seat and would not break eye contact” with the trooper,
“leering at [him] through the back window” in a way that Kelly
found “unsettling” and “very unusual.” So Kelly called for
backup, which soon arrived in the form of Troopers Anthony
Cattabriga and Kevin Devlin. At that point, Kelly approached the
Charger so that he could speak with Drane, who was still sitting
in the backseat, while Cattabriga remained with Lebo, who at that
point was standing in front of Kelly’s cruiser.
Kelly asked Drane where he was traveling from, and Drane
responded that he and Lebo had visited his mother’s house in
Mattapan, then gone “to his cousin’s house and stayed a short
while” before heading back toward Maine. This differed somewhat
9 from Lebo’s account of the pair’s prior doings: she had said
that, after visiting Drane’s mother, they tried to visit the
house of his daughter, but nobody was home, so they left to
return to Maine. Kelly also noticed that Drane was “fidgety” and
“talking quickly,” and that his pupils were constricted (even
after Kelly had turned off the bright lights of his cruiser).
Kelly recognized these as signs that Drane might be under the
influence of drugs. A check of Drane’s name with dispatch
revealed “several entries for drug possession and possession with
intent to distribute.” Based on this information, as well as
Drane’s behavior and the inconsistent accounts of his prior
whereabouts, Kelly decided to ask for consent to search the car.
In the meantime, Lebo had told Trooper Cattabriga that the
Charger “was a rental vehicle” for which “her mom had fronted her
the money ahead of time because [Lebo’s] vehicle was having
mechanical issues.” Kelly then asked Lebo, in whose name the
vehicle had been rented, for her consent to search it, explaining
that he had become suspicious due to Drane’s criminal record and
behavior during the encounter, as well as the inconsistency in
their stories. Kelly presented Lebo with the standard New
Hampshire State Police form used to memorialize consent for a
search, explaining that “she didn’t have to let us search the car
at all if she didn’t want to” and that “if at any time she wanted
10 to withdraw her consent, she could so.” Lebo signed the form,
indicating her consent to a search of the vehicle.
As Kelly was talking with Lebo, Cattabriga was keeping an
eye on Drane, who had remained in the back seat of the Charger.
The men began making “small talk,” in Cattabriga’s words, and he
asked Drane why the car had been stopped and why he was sitting
in the back seat. After Drane explained that he had hoped to
avoid being charged for driving with a suspended license,
Cattabriga asked Drane if he had ever been charged with that
offense before. Drane “indicated that he had not. He indicated
that most of his prior charges were assault and drug related
charges.” This prompted Cattabriga to ask Drane when he had last
used drugs (he said it was four days prior) and what his drug of
choice was (Drane said it was marijuana).
During their conversation, Cattabriga noticed that Drane was
“making furtive movements with his hands, ducking in and ducking
out,” as well as rubbing the back of his head and neck.
Concerned for his safety, Cattabriga directed Drane to step out
of the vehicle and, after he did, handcuffed him. Cattabriga
told Drane that “he was not under arrest” but “was being
temporarily detained only as a safety precaution.” After a
pat-down revealed nothing of interest, Cattabriga brought Drane
past the rear of the Charger--where, at that point, Kelly was
11 asking Lebo for her consent to search the car. Cattabriga then
began placing Drane in the back seat of Kelly’s cruiser. At that
point, Drane “said something along the lines of, ‘Don’t forget my
crack pipe in the driver’s door.’”
The search of the Charger revealed the crack pipe in the
door. In addition, a purse on the passenger’s seat was found to
contain two large plastic baggies holding more than 30 grams of
crack cocaine, several empty plastic baggies, and a digital
scale. The search also turned up two small plastic baggies of
heroin on the driver’s side floorboard. Drane and Lebo were
arrested and subsequently charged with possession of crack
cocaine with the intent to distribute it, see 21 U.S.C.
§ 841(a)(1), and conspiring to do so, see id. § 846.
II. Analysis
A. Fourth Amendment claims
The Fourth Amendment protects against “unreasonable searches
and seizures,” U.S. Const. amend. IV, and these “protections
extend to brief investigatory stops of persons or vehicles that
fall short of traditional arrest,” United States v. Arvizu, 534
U.S. 266, 273 (2002) (citing, inter alia, Terry v. Ohio, 392 U.S.
1, 9 (1968)). These encounters are known as “Terry stops,” see,
e.g., United States v. Mouscardy, 722 F.3d 68, 72 (1st Cir.
2013), after the Supreme Court’s holding in Terry, supra, “that
12 the police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if
the officer lacks probable cause,” United States v. Sokolow, 490
U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30).
Assessing the reasonableness of a Terry stop, then, entails
a two-step analysis: first, the court must “ascertain whether
the stop was justified at its inception,” i.e., supported by
reasonable suspicion, and, second, the court must “determine
whether the actions undertaken during the stop were reasonably
related in scope to the stop itself[,] unless the police had a
basis for expanding their investigation.” Mouscardy, 722 F.3d at
73 (quotation marks and bracketing by the court omitted). In
moving to suppress the evidence seized in the stops, Drane has
not disputed that the police had reasonable suspicion to stop the
vehicle he was driving in Biddeford, Maine in June 2012, or in
Hampton, New Hampshire in September 2012. Instead, he argues
that the actions the police took after they stopped him in each
instance “exceed[ed] the scope of the traffic stop.” As
explained below, the court disagrees, and in any event, there was
an independent basis supporting the search that ultimately took
place during each of the stops--the bail conditions subjecting
Drane to suspicionless searches of his person during the Maine
13 stop, and Lebo’s consent to search the vehicle she had rented
during the New Hampshire stop.
1. Maine stop
Drane argues that the police exceeded the scope of the
traffic stop in Biddeford, Maine, by asking him whether he was in
possession of drugs and, after these questions produced a denial
and non-responsive behavior, patting him down. During a traffic
stop, “[i]f a law enforcement officer reasonably suspects
criminal activity, he may briefly question the suspect about his
concerns. If [the officer] has a reasonable basis to suspect
that the subject of his inquiry may be armed, he may also frisk
the suspect.” United States v. Cook, 277 F.3d 82, 85 (1st Cir.
2002) (citations omitted). Whether such suspicions are
reasonable, of course, depends upon the totality of the
circumstances confronting the police. See, e.g., United States
v. Cortez, 449 U.S. 411, 417 (1981). Here, the totality of the
circumstances gave the police an objectively reasonable basis to
suspect that Drane was in possession of both illegal drugs, so as
to justify his brief detention while they questioned him on that
subject, and a weapon, so as to justify patting him down.
The police had stopped Drane’s vehicle as he left what his
brother and companion, Leroy, had acknowledged as a violent
dispute with two other people, the Bartons, over an alleged
14 debt--a dispute that had erupted when the Drane brothers
encountered the Bartons at a spot known to the police for drug
activity. “[O]n its own, of course, the character of the
location where [the defendant’s activity] occurs is insufficient
to create reasonable suspicion,” but neither must officers
“ignore the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to warrant
further investigation.” United States v. Rabbia, 699 F.3d 85, 90
(1st Cir. 2012) (quotation marks omitted).
It was not only where Drane had been, i.e., at a gas station
associated with the drug trade, but what he had been doing there,
i.e., getting into an argument over a debt that escalated into a
reported fight at a busy intersection in the middle of the day,
that contributed to a reasonable suspicion that he was in
possession of drugs. See, e.g., United States v. Chapman, 305
F.3d 530, 534 (6th Cir. 2002) (finding that defendant’s recent
flight from the site of known drug activity, coupled with a
report that a man meeting his description had been involved in a
fight at that location, established reasonable suspicion that
defendant was involved in drug activity). Indeed, there is a
“well-known relation between drugs and violence,” United States
v. Legarda, 17 F.3d 496, 502 (1st Cir. 1994), particularly
violence in city streets.
15 It is true that, before Reali began asking Drane whether he
had drugs on his person, his brother, Leroy, had said that their
fight with the Bartons was over money loaned for a potentially
legitimate purpose, i.e., to post Mark Barton’s bail.1 But “[a]
reasonable police officer is not required to credit a suspect’s
story.” Cox v. Hainey, 391 F.3d 25, 32 n.2 (1st Cir. 2004).
Here, the officers had a solid reason to doubt Leroy’s account of
the basis of the debt, since, even after the fight ended with
Leroy’s hand bloodied and the windshield of their car smashed,
the Dranes declined to pursue charges against the Bartons. While
a reasonable officer could ascribe innocent motives to this
choice (perhaps, for example, the Dranes were fearful over
further angering the Bartons by setting the police after them),
it was likewise reasonable for the police to infer that the
Dranes were seeking to eschew any further police investigation
into the fight because it might reveal inculpatory information
about the Dranes themselves. “‘Under Terry, the test is whether
the circumstances give rise to a reasonable suspicion of criminal
activity, not whether the defendant’s actions are subject to no
reasonable innocent explanation.’” Rabbia, 699 F.3d at 90
1 Of course, is not uncommon for one person to post bail for another because the two are engaged in a joint criminal enterprise that faces disruption from the pre-trial detention. Cf. United States v. Slagg, 651 F.3d 832, 845 (8th Cir. 2011).
16 (quoting United States v. Stanley, 915 F.2d 54, 57 (1st Cir.
1990)). In any event, Leroy’s story that the money had been
loaned to bail Mark Barton out of jail--even if believed--creates
a potentially inculpatory inference. See note 1, supra.
Furthermore, Drane, for his part, was “sweating profusely”
and “seemed very nervous” during his brother’s explanation of an
incident in which, by Leroy’s stated view at least, the Dranes
“didn’t do anything wrong.” Drane had also attempted to head
straight into Lebo’s house after parking the vehicle in her
driveway, despite Officer Penney’s commands to stop. A suspect’s
evasive and nervous behavior during a stop can contribute to
reasonable suspicion of criminality. See, e.g., United States v.
Hart, 674 F.3d 33, 38-40 (1st Cir. 2012); United States v.
Chaney, 584 F.3d 20, 26 (1st Cir. 2009).
Based on the foregoing circumstances, then, it was
reasonable for the officers to suspect that the fight between the
Dranes and Bartons had its origins in drug trafficking (whether
it was money owed for drugs or some other issue). Based on that
suspicion, in turn, it was reasonable for the officers to
question Drane about his possession of drugs--in light of the law
that, as already noted, “[i]f a law enforcement officer
reasonably suspects criminal activity, he may briefly question
the suspect about his concerns” during a Terry stop. Cook, 277
17 F.3d at 85 (citing, inter alia, Berkemer v. McCarty, 468 U.S.
420, 439 (1984)).
Drane argues that, in fact, questions about his possession
of drugs “bore no relation to the initial purpose of the traffic
stop,” relying on a case from the Seventh Circuit Court of
Appeals where, after stopping a vehicle for a moving violation,
the police asked its occupants whether they possessed drugs,
despite lacking reasonable suspicion that they did. United
States v. Childs, 256 F.3d 559, 564-65 (7th Cir. 2001).2 Here,
2 While that opinion concluded that, as a consequence, the questioning violated the Fourth Amendment, the Seventh Circuit, sitting en banc, later reversed the panel decision on that point, United States v. Childs, 277 F.3d 947, 954 (7th Cir. 2002)--a development that, regrettably, Drane’s original counsel failed to acknowledge in citing Childs to this court. The en banc court held that “[q]uestions asked during detention may effect the reasonableness of that detention (which is a seizure) to the extent that they prolong custody, but questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers”--even if they are “questions in search of information about other offenses” for which the police lack reasonable suspicion. Id. at 949-50. Incidentally, this view of Terry stops has proven controversial. See, e.g., 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.3(b), at 491-507 (5th ed. 2012) (criticizing this holding and citing cases that have rejected it). Our Court of Appeals, for its part, has deemed it “not clearly established” that the Fourth Amendment prohibits questioning a suspect about crimes unrelated to the purpose of the stop in the absence of reasonable suspicion of those crimes. Estrada v. Rhode Island, 594 F.3d 56, 64 (1st Cir. 2010) (granting qualified immunity to officer on claim that he violated plaintiff’s Fourth Amendment rights by questioning her, without reasonable suspicion, about immigration law violations after
18 though, the “initial purpose of the traffic stop” was not to
investigate a moving violation, but to investigate a report of a
violent altercation between two groups of people at a busy
intersection in the middle of the day, near a location known for
its association with the drug trade. Because, as just discussed
at length, the circumstances of that fight, combined with the
unusual behavior of Drane and his brother during the resulting
stop, provided reasonable suspicion to think that the fight had
arisen out of a drug trafficking dispute, the officers did not
transform a permissible traffic stop into an impermissible one
simply by asking Drane whether he had drugs on him.3 See Cook,
277 F.3d at 86-87 (ruling that suspect’s participation in
behavior common to drug transactions, in a neighborhood known for
them, and his furtive actions upon noticing the police, provided
stopping her vehicle for an unsignaled lane change). But deciding Drane’s motion to suppress does not require resolving that issue since, as discussed in the main text, the purpose of the stop was not a traffic violation, but a street fight, and the police had reasonable suspicion that Drane was involved in the criminal activity they asked him about, i.e., drug possession. 3 It is true that, while waiting for Agent Reali to arrive to question Drane, the police detained him for “five to ten minutes” (in addition to the time that had passed while Officers Penney and Angis were questioning the Dranes about their altercation with the Bartons). Drane, however, has not argued that the stop was illegal as a result of its duration and, in any event, the Court of Appeals has found that detentions of around the same length “did not exceed the boundaries of a permissible Terry stop.” Mouscardy, 722 F.3d at 74 (citing other decisions by the Court of Appeals upholding stops of approximately 30 minutes).
19 reasonable suspicion to “briefly detain and question” him about
whether he was in possession of a gun or other contraband).
In large part, the same circumstances that gave the police
reasonable suspicion to ask Drane whether he possessed drugs also
gave them reasonable suspicion to frisk Drane to determine
whether he possessed a weapon. Again, the police reasonably
believed that the Dranes’ effort to collect a drug debt from the
Bartons had sparked the brawl, and “drug dealing is often
associated with access to weapons.” Rabbia, 699 F.3d at 92
Indeed, the fact of Drane’s recent participation in a fight,
whatever its cause, itself supports the decision to check him for
weapons. See Mouscardy, 722 F.3d at 75 (“When an officer has a
reasonable suspicion that a crime of violence has occurred, the
same information that will support an investigatory stop will
without more support a frisk.”) (quotation marks omitted). These
circumstances, combined with Drane’s nervous and evasive behavior
throughout the encounter--including both his attempt to head into
Lebo’s house despite Penney’s commands to halt, and his “shaky”
and “inaudible” answers to Reali’s questions--provided ample
justification for the police to frisk Drane. See id. at 75-76
(upholding pat-down of detainee “suspected to have committed a
violent crime” who also refused to answer questions and became
“agitated and nervous”).
20 Finally, even if the police lacked reasonable suspicion to
search Drane for weapons, that search nevertheless did not
violate Drane’s Fourth Amendment rights. At the time of the
traffic stop, Drane was subject to bail conditions that, “[i]n
order to determine if [he] ha[d] violated any prohibitions of
[the] bond regarding . . . illegal drugs,” he would “submit to
searches of [his] person . . . at any time without articulable
suspicion or probable cause.” The Court of Appeals has ruled
that, “even in the absence of articulable suspicion,” similar
bail conditions “independently justified” the police in searching
a suspect, “see[ing] no reason why [it] should not give the plain
language of the bail condition force and effect.” United States
v. Gates, 709 F.3d 58, 64 (1st Cir. 2013). The same result is in
order here--particularly since Drane has not argued otherwise.
Because the officers’ actions toward Drane after they stopped him
in Biddeford, Maine, in June 2012 did not violate his Fourth
Amendment rights, his motion to suppress the evidence resulting
from that stop (including the crack cocaine he ultimately
produced from his underwear) is denied.
B. New Hampshire stop
Drane argues that, after stopping the vehicle he had been
driving for speeding in Hampton, New Hampshire, in September
2012, the police “lacked a basis to expand the scope of the
21 traffic stop for speeding into a search of the car for drugs.”
The difficulty with this argument is that the “basis” for that
search was Lebo’s consent (as opposed to the probable cause that
searching the car would otherwise have required, see Carroll v.
United States, 267 U.S. 132 (1925)). The prosecution can
“justify a warrantless search”--and ensure the admissibility of
the resulting evidence against the defendant notwithstanding any
Fourth Amendment objection--by “show[ing] that permission to
search was obtained from a third party who possessed common
authority over or sufficient relationship to the premises or
effects sought to be inspected.” United States v. Matlock, 415
U.S. 164, 171 (1974) (footnote omitted); see also, e.g., United
States v. Carrasco, 540 F.3d 43, 49 (1st Cir. 2008).
Drane has not questioned that Lebo had “authority over or
sufficient relationship to” the car she permitted the police to
search, which, after all, she had rented in her name.4 See
4 Drane argues that, even though the rental agreement did not authorize him to drive the vehicle, he nevertheless had a reasonable expectation of privacy in it, enabling him to challenge the search. As Drane acknowledges, some “circuits have held that persons driving a rental car without the authorization of the rental company have no standing to challenge the validity of the search, because they have no legitimate expectation of privacy in such circumstances,” United States v. Riazco, 91 F.3d 752, 755 (5th Cir. 1996) (citing cases), while another has held that “as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle,” while refusing to adopt “a bright line test . . . based solely on whether the driver of a rental vehicle is listed on the
22 United States v. Hunter, 663 F.3d 1136, 1144 (10th Cir. 2011)
(“the named person on a rental car agreement can authorize a
search of a rented car”).
Drane has also not questioned that Lebo’s consent was
voluntarily given, i.e., was “the product of an essentially free
and unrestrained choice.” Schneckloth v. Bustamonte, 412 U.S.
218, 225 (1973). As discussed supra, Trooper Kelly secured
Lebo’s permission to search the vehicle by presenting her with
the standard form that the New Hampshire State Police use to
obtain consent for such searches, explaining to her that “she
didn’t have to let us search the car at all if she didn’t want
to” and that “if at any time she wanted to withdraw her consent,
she could do so.” So there seems to be no question that Lebo’s
consent to search the vehicle was voluntary, see, e.g., United
States v. Brake, 666 F.3d 800, 806-08 (1st Cir. 2011), but,
again, Drane has not argued to the contrary.
rental agreement as an authorized driver,” United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001). Our court of appeals does not appear to have considered a non-renter’s expectation of privacy in a rental car but, in general, has cautioned that “[n]o bright-line rule determines whether a person has a reasonable expectation of a privacy in a vehicle.” United States v. Almeida, 748 F.3d 41, 47 (1st Cir. 2014). Here, the prosecution has not argued that Drane lacked a reasonable expectation of privacy in the car rented by Lebo, so the court has simply assumed that, in fact, he had such an expectation.
23 It is possible that, although consent to a search is
voluntary, the evidence it turns up can still be suppressed as
the fruit of the consenting party’s unlawful detention, cf.
Chaney, 647 F.3d at 408 n.10, on the theory that the consent does
not purge the taint of the detention, see 4 LaFave, supra,
§ 8.2(d), at 102-104. But Drane does not make that argument
either. In any event, Lebo was not unlawfully detained at the
time she gave Trooper Kelly permission to search.
To the contrary, “the actions undertaken by the officer
during 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.” United
States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998). After Trooper
Kelly stopped the Charger for speeding, he observed additional
suspicious behavior almost immediately, as Drane leapt from the
driver’s seat into the backseat and pretended to be sleeping,
while Lebo took his place in the driver’s seat. Though Lebo told
Kelly that she and Drane had switched seats in hopes that he
could avoid a citation for driving with a suspended license,
Kelly was not obligated to accept outright that explanation for
their suspicious behavior, see, e.g., Rabbia, 699 F.3d at 90,
particularly in light of Drane’s “leering” and “fidgeting”
24 (including an attempt to “jump out of the car” while Kelly was
talking to Lebo), see, e.g., Chaney, 584 F.3d at 26.
Trooper Kelly was also entitled to ask Lebo and Drane about
the origin and destination of their trip--indeed, an officer may
ask such routine questions during a traffic stop more or less as
a matter of course. See United States v. Brigham, 382 F.3d 500,
508 & n.6 (5th Cir. 2004) (citing cases from several different
federal courts of appeals). Lebo and Drane gave answers to those
questions that did not match up in all particulars and Drane, in
doing so, displayed signs of drug intoxication, including
constricted pupils. Kelly then learned that Drane’s record
included “several entries for drug possession and possession with
intent to distribute.” It was not until Trooper Kelly had
gleaned all of this information that he asked Lebo for consent to
search the vehicle--and his interactions with Drane and Lebo up
until that point had only increased, and objectively so, his
suspicions that the two were engaged in criminal behavior. The
brief intervening detention of Lebo and Drane, then, did not
violate the Fourth Amendment. See Sowers, 136 F.3d at 27 (ruling
that officer had not exceeded the permissible scope of a Terry
stop where, after he stopped the vehicle for a moving violation,
his “attention shifted . . . toward a belief that the detainees
25 were engaged in more serious” criminal conduct, based on their
“excessive nervousness and the conflicting stories they told”).
Finally, relying on Georgia v. Randolph, supra, Drane argues
that, “[b]ased on his expectation of privacy in the car, his
consent was necessary, especially because he was present.”
Again, though, it is far from clear that Drane in fact had a
reasonable expectation of privacy in the car, see note 3, supra,
or that “Randolph, which involved a search of a residence,
applies in the context of a vehicle search.” United States v.
Lumpkins, 687 F.3d 1011, 1014 (10th Cir. 2012) (suggesting that,
because Randolph relied on “the centuries-old principle of
respect for the privacy of the home,” it does not apply to cars).
Even putting those concerns aside, however, Randolph is
still inapposite here. That decision holds that “a physically
present inhabitant’s express refusal of consent to a police
search is dispositive as to him, regardless of the consent of a
fellow occupant.” 547 U.S. at 122-23. Here, there is no
evidence that Drane refused to consent to a search of the rental
car. Drane complains that he “was never asked for his consent,”
but that is wholly unavailing, in light of Randolph’s teaching
that “a potential objector, nearby but not invited to participate
in the . . . colloquy [over consent], loses out” on his chance to
object. Id. at 121 (emphasis added). While the Court cautioned
26 that this rule governs only in the absence of “evidence that the
police [] removed the potentially objecting [defendant] . . .
for the sake of avoiding a possible objection,” id. at 121, there
is no evidence that the police did so here. To the contrary,
Trooper Cattabriga explained that he ordered Drane from the
vehicle, handcuffed him, and removed him to a cruiser because his
“furtive movements with his hands, ducking in and ducking out”
while in the backseat of the Charger had caused Cattabriga
concern for his safety. In any event, Drane conceded during
argument at the suppression hearing that he did not “think they
purposely segregated” him from Lebo so he would not have the
chance to object to the search. Georgia v. Randolph does not
invalidate Lebo’s consent to search the car, or prevent the
resulting evidence from being used against Drane at trial. His
motion to suppress the evidence discovered in the search of the
Charger he was driving through Hampton, New Hampshire in
September 2012 is denied.
B. Fifth Amendment claim
Just before trial, Drane also moved to suppress evidence of
statements he allegedly made during the September 2012 traffic
stop, including his answer (in response to Trooper Cattabriga’s
questions) that he had last used drugs four days ago and
preferred marijuana, as well as his comment, as he was being
27 moved from the Charger to a police cruiser, “Don’t forget my
crack pipe in the driver’s door.” Drane argues that use of these
statements against him at trial would violate the Fifth
Amendment, as interpreted in Miranda, since, it is undisputed, he
had not been warned of his rights to silence or counsel before he
made the statements.
“Any statements obtained as a result of custodial
interrogation in the absence of Miranda warnings must be
suppressed,” but “[c]ustodial interrogation requires that the
defendant was both ‘in custody’ and subjected to
‘interrogation.’” United States v. Jackson, 544 F.3d 351, 356
(1st Cir. 2008). In response to Drane’s motion to suppress his
statements, the prosecution argues principally that, at the time
he made them, he was not in custody, but merely detained during a
traffic stop. See, e.g., United States v. Campbell, 741 F.3d
251, 265 (1st Cir. 2013) (discussing Berkemer, 468 U.S. at 437-
40). The prosecution also announced, however, that it did not
intend to introduce, at trial, Drane’s answers to Trooper
Cattabriga’s questions about his recent drug use.
This left, as the subject of Drane’s second motion to
suppress, only the “Don’t forget the crackpipe” comment, and
Drane did not argue, let alone adduce any evidence, that he made
that statement in response to “interrogation,” i.e., “words or
28 actions on the part of the police that the police know are
reasonably likely to elicit an incriminating response from the
suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). To
the contrary, the evidence is that Drane “simply blurted out the
incriminating statement without prompting.” Jackson, 544 F.3d at
351. Because this statement was not the product of custodial
interrogation (even assuming, contrary to the prosecution’s
argument, that Drane was in custody at the time he uttered it),
it is admissible against Drane at trial despite the fact that he
did not receive Miranda warnings. See Miranda, 384 U.S. at 478
(“Volunteered statements of any kind are not barred by the Fifth
Amendment”). His motion to suppress that statement is denied.
IV. Conclusion
For the foregoing reasons, Drane’s motions to suppress
(document nos. 28 and 72) are DENIED.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: June 30, 2014
cc: Seth R. Aframe, AUSA Nick Abramson, AUSA Robert S. Carey, Esq.