15‐942 United States v. Compton
2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2015 8 9 ARGUED: FEBRUARY 24, 2016 10 DECIDED: JULY 19, 2016 11 12 No. 15‐942 13 14 UNITED STATES OF AMERICA, 15 Appellee, 16 17 v. 18 19 PETER COMPTON, 20 Defendant‐Appellant. 21 ________ 22 23 Appeal from the United States District Court 24 for the Northern District of New York. 25 No. 8:13‐CR‐405 – Norman A. Mordue, Judge. 26 ________ 27 28 Before: WALKER, RAGGI, and HALL, Circuit Judges. 29 ________ 30 31 Defendant‐Appellant Peter Compton appeals from the
32 judgment of the United States District Court for the Northern
33 District of New York (Mordue, J.) denying his motion to suppress 2 No. 15‐942
1 145 pounds of marijuana discovered in his vehicle by United States
2 Border Patrol (“Border Patrol”) agents. Compton argues that the
3 agents seized him and searched his vehicle in violation of his Fourth
4 Amendment rights. We agree with the district court that the agents
5 had reasonable suspicion to conduct a Terry stop of Compton, see
6 Terry v. Ohio, 392 U.S. 1 (1968), and that the agents did not
7 unreasonably extend the stop. Accordingly, we AFFIRM the district
8 court’s judgment denying the motion to suppress the physical
9 evidence.
10 ________ 11 12 MOLLY K. CORBETT, Research & Writing Attorney 13 (Paul J. Evangelista, Assistant Federal Public 14 Defender, on the brief), for Lisa A. Peebles, Federal 15 Public Defender for the Northern District of New 16 York, Albany, NY, for Defendant‐Appellant.
17 STEVEN D. CLYMER, Assistant United States 18 Attorney (Katherine Kopita, Assistant United 19 States Attorney, on the brief), for Richard S. 20 Hartunian, United States Attorney for the 21 Northern District of New York, Syracuse, NY, for 22 Appellee.
23 ________ 24 25 JOHN M. WALKER, JR., Circuit Judge:
26 Defendant‐Appellant Peter Compton appeals from the
27 judgment of the United States District Court for the Northern
28 District of New York (Mordue, J.) denying his motion to suppress 3 No. 15‐942
1 145 pounds of marijuana discovered in his vehicle by United States
2 Border Patrol (“Border Patrol”) agents. Compton argues that the
3 agents seized him and searched his vehicle in violation of his Fourth
4 Amendment rights. We agree with the district court that the agents
5 had reasonable suspicion to conduct a Terry stop of Compton, see
6 Terry v. Ohio, 392 U.S. 1 (1968), and that the agents did not
7 unreasonably extend the stop. Accordingly, we AFFIRM the district
8 court’s judgment denying the motion to suppress the physical
10 BACKGROUND
11 On August 22, 2013, at approximately 7:30 a.m., Border Patrol
12 agents set up an immigration checkpoint near the Canadian border
13 on State Route 11 in Chateaugay, New York. Approximately .5
14 miles west of the checkpoint, at the crest of a hill and on the north
15 side of the road, there was a vegetable stand. The stand was “not
16 manned” and only “[i]ntermittently active.” App. 61, 79. Shortly
17 before passing the vegetable stand, eastbound drivers coming over
18 the hill would be able to see for the first time the vegetable stand
19 and a sign alerting them to the checkpoint.
20 At approximately 8:00 a.m., Compton and his brother were
21 traveling eastbound on Route 11 in their mother’s green Ford sport
22 utility vehicle (“SUV”). Compton sat in the front passenger seat
23 while his brother drove. 4 No. 15‐942
1 Border Patrol Agent David Gottschall had parked his marked
2 Border Patrol vehicle on the north side of Route 11, facing the road,
3 between the checkpoint and the vegetable stand. From this
4 position—approximately .35 miles west of the checkpoint and
5 approximately .15 miles east of the stand—Gottschall could monitor
6 eastbound traffic through his passenger side window. He observed
7 Compton’s SUV come over the crest of the hill, abruptly slow down,
8 and veer into the U‐shaped driveway of the vegetable stand.
9 Gottschall then received a telephone call from fellow Border
10 Patrol Agent Daniel Taylor, who was stationed at the checkpoint.
11 Taylor told Gottschall that a motorist entering the checkpoint had
12 just reported that the SUV had passed her vehicle and then
13 immediately slowed down upon reaching the crest of the hill.
14 After receiving the call from Taylor, Gottschall drove to the
15 vegetable stand and parked behind the SUV. The SUV was
16 unoccupied. He then saw Compton and his brother walking away
17 from the vegetable stand approximately fifteen to twenty feet apart
18 from one another. Each of the two men held a pint of peppers.
19 Gottschall ordered Compton and his brother to return to their
20 vehicle, where he began to question them. Gottschall asked the men
21 for identification and tried to find out why they had turned off the
22 road so abruptly. Gottschall then walked back towards his Border
23 Patrol vehicle, intending to run checks on the brothers’ identities 5 No. 15‐942
1 and the SUV’s license plate. As he passed the rear seat of the SUV,
2 he noticed a blanket in the back that appeared to be concealing
3 something. Gottschall later testified at the suppression hearing that,
4 in his experience, “blankets are commonly used to conceal humans,”
5 to “conceal cigarettes” or, more generally, “to prevent the plain view
6 observation of law enforcement.” App. 62.
7 Suspecting that the blanket in the SUV “either concealed
8 humans or narcotics or something to that effect,” id., Gottschall
9 contacted Taylor and asked him to bring a canine to the SUV.
10 Taylor brought his canine, Tiko, to the SUV in less than a minute.
11 Gottschall and Taylor informed the brothers that the Border
12 Patrol would be performing a canine sniff, removed the brothers
13 from the SUV, and led Tiko around the SUV. The canine sniff took
14 no more than five minutes, and during this time Compton and his
15 brother sat handcuffed inside separate Border Patrol vehicles.
16 Tiko alerted at the SUV’s rear door. After Taylor opened the
17 door, Tiko entered the SUV and alerted to four duffle bags. The
18 Border Patrol agents then informed Compton and his brother that
19 they were under arrest. The Border Patrol later found that the four
20 duffel bags contained approximately 145 pounds of marijuana.
21 On October 23, 2013, a grand jury indicted Compton and his
22 brother on two counts. Count One charged the brothers with
23 conspiracy to possess with intent to distribute and to distribute 100 6 No. 15‐942
1 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1)
2 and 846. Count Two charged the brothers with possession with
3 intent to distribute 50 kilograms or more of marijuana in violation of
4 21 U.S.C. § 841(a)(1).
5 On May 1, 2014, Compton moved to suppress statements as
6 well as physical evidence obtained during the stop and seizure. He
7 argued that the Border Patrol had lacked reasonable suspicion to
8 detain him and had extended the detention unreasonably. He also
9 argued that, when the agents handcuffed him and placed him in a
10 Border Patrol vehicle during the canine sniff, the detention became
11 an arrest without probable cause.
12 On September 9, 2014, following an evidentiary hearing, the
13 district court issued a decision and order denying the motion as to
14 the physical evidence. The district court rejected Compton’s
15 arguments as to the lack of reasonable suspicion and unreasonable
16 length of detention. The district court agreed that the detention
17 became an arrest without probable cause but determined that,
18 because the Border Patrol would have discovered the marijuana
19 without the arrest, the drugs did not need to be suppressed as fruit
20 of the poisonous tree.
21 On October 30, 2014, Compton and the government entered
22 into a conditional plea agreement in which Compton agreed to
23 plead guilty to Count Two of the indictment and both parties agreed 7 No. 15‐942
1 that he reserved his right to appeal the district court’s decision not to
2 suppress the physical evidence.
3 On March 6, 2015, the district court dismissed Count One of
4 the indictment on the government’s motion and sentenced Compton
5 to thirty months of imprisonment followed by three years of
6 supervised release. On March 30, 2015, Compton filed a timely
7 notice of appeal.
8 DISCUSSION
9 Compton argues on appeal that Gottschall lacked reasonable
10 suspicion to detain him at the vegetable stand and that Gottschall
11 unreasonably extended the detention to perform the canine sniff,
12 errors that tainted his subsequent arrest and the vehicle search,
13 requiring the suppression of evidence obtained from the search. We
14 disagree.
15 I. Reasonable Suspicion
16 We review de novo a district court’s reasonable suspicion
17 determination. Ornelas v. United States, 517 U.S. 690, 691 (1996). “The
18 factual findings underlying that determination must be accepted
19 unless clearly erroneous.” United States v. Padilla, 548 F.3d 179, 186
20 (2d Cir. 2008); United States v. Bershchansky, 788 F.3d 102, 109 (2d Cir.
21 2015).
22 The Fourth Amendment to the United States Constitution
23 protects “[t]he right of the people to be secure in their persons, 8 No. 15‐942
1 houses, papers, and effects, against unreasonable searches and
2 seizures.” U.S. Const. amend. IV. “As this language indicates, the
3 ultimate measure of the constitutionality of a government search or
4 seizure is reasonableness.” United States v. Bailey, 743 F.3d 322, 331
5 (2d Cir. 2014) (internal quotation marks omitted). Reasonableness is
6 “generally determined by balancing the particular need to search or
7 seize against the privacy interests invaded by such action.” Id.
8 Under the Fourth Amendment, an officer may conduct a brief
9 investigatory detention (commonly known as a “Terry stop”) as long
10 as the officer has reasonable suspicion “that the person to be
11 detained is committing or has committed a criminal offense.” Id. at
12 332 (internal quotation marks omitted); see Terry, 392 U.S. at 30.
13 Reasonable suspicion requires more than an “inarticulate
14 hunch[].” Terry, 392 U.S. at 22. The suspicion must derive from
15 “specific and articulable facts which, taken together with rational
16 inferences from those facts, provide detaining officers with a
17 particularized and objective basis for suspecting wrongdoing.”
18 Bailey, 743 F.3d at 332 (internal citation and quotation marks
19 omitted).
20 In assessing the reasonableness of an officer’s suspicion, we
21 must take into account “the totality of the circumstances” and must
22 “evaluate those circumstances through the eyes of a reasonable and
23 cautious police officer on the scene, guided by his experience and 9 No. 15‐942
1 training.” United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000)
2 (internal quotation marks omitted); see United States v. Cortez, 449
3 U.S. 411, 418 (1981) (“[T]he evidence . . . collected must be seen and
4 weighed not in terms of library analysis by scholars, but as
5 understood by those versed in the field of law enforcement.”).
6 Here, the district court properly rejected Compton’s argument
7 that Gottschall lacked reasonable suspicion to detain him at the
8 vegetable stand. Gottschall’s suspicion was reasonable due to the
9 combination of (1) the brothers’ avoidance of the checkpoint, (2) the
10 checkpoint’s proximity to the border, and (3) the brothers’ peculiar
11 attempt to conceal the avoidance.
12 A. Avoidance of the Checkpoint
13 The district court did not commit clear error in finding that
14 the SUV avoided the checkpoint, and the district court properly
15 determined that avoidance to be a factor supporting the
16 reasonableness of Gottschall’s suspicion.
17 1. Absence of Clear Error
18 We easily reject Compton’s argument that the district court
19 never made a factual finding that the SUV avoided the checkpoint.
20 The district court expressly included “the SUV’s avoidance of the
21 checkpoint” in a list of the “objective facts” supporting Gottschall’s
22 reasonable suspicion. App. 145. We review this factual finding for
23 clear error. See Padilla, 548 F.3d at 186. 10 No. 15‐942
1 We find no clear error here. Gottschall testified that he
2 observed the SUV immediately slow down at the crest of the hill—
3 the exact point at which an eastbound driver would first be able to
4 see the checkpoint—and veer abruptly into the vegetable stand.
5 Gottschall further testified that he then received a call from a fellow
6 agent and learned that a motorist had reported that the SUV had
7 passed her before suddenly slowing at the crest of the hill. This
8 evidence supports the district court’s finding that the occupants of
9 the SUV performed an intentionally evasive maneuver to avoid the
10 checkpoint at the moment it came into view.
11 Compton’s evidentiary challenges warrant no different
12 conclusion. His argument that the district court inappropriately
13 construed the abrupt turn as evasive—insofar as the SUV did not
14 immediately drive away in the opposite direction—fails because
15 Gottschall testified that, although many “turnarounds” did involve
16 sudden U‐turns, other drivers would frequently pull into a location
17 “and simply sit there and wait.” App. 89. Compton’s challenge to
18 the reliability of the motorist’s report is also misguided: the motorist
19 provided an account of an event she had just observed, see Navarette
20 v. California, 134 S. Ct. 1683, 1689 (2014) (observing that a
21 contemporaneous report of a traffic incident based on personal
22 knowledge was “especially reliable”); her description of the SUV
23 was corroborated by Gottschall’s personal observations, cf. United 11 No. 15‐942
1 States v. Elmore, 482 F.3d 172, 180 (2d Cir. 2007) (stating that, while
2 “even a completely anonymous tip could support a finding of
3 probable cause with a sufficient degree of corroboration,” the extent
4 of corroboration needed to support reasonable suspicion “is
5 obviously less”); and she reported her observation to a law
6 enforcement official in person, cf. Navarette, 134 S. Ct. 1689‐90
7 (relying on ability of authorities to identify 911 callers to justify
8 reliance on information reported). Nor does Compton’s emphasis on
9 the number of possible “innocent” explanations for the abrupt turn
10 establish clear error. See United States v. Arvizu, 534 U.S. 266, 277
11 (2002) (“A determination that reasonable suspicion exists . . . need
12 not rule out the possibility of innocent conduct.”).
13 2. Avoidance and Reasonable Suspicion
14 Avoidance of a checkpoint alone is probably insufficient to
15 establish reasonable suspicion. See United States v. Murphy, 703 F.3d
16 182, 192 n.7 (2d Cir. 2012). Motorists may intentionally avoid a
17 checkpoint for any number of reasons unrelated to criminal activity.
18 See United States v. Ogilvie, 527 F.2d 330, 331‐32 (9th Cir. 1975). For
19 example, some may wish to “avoid the inconvenience and delay of
20 being stopped.” United States v. Yousif, 308 F.3d 820, 828 (8th Cir.
21 2002). Others may find checkpoints stressful and prefer to avoid
22 interactions with law enforcement when possible. 12 No. 15‐942
1 Avoidance of a checkpoint is, however, a factor that can
2 support a finding of reasonable suspicion when combined with
3 other relevant circumstances. A number of our sister circuits have so
4 held, see, e.g., United States v. Smith, 396 F.3d 579, 585‐86 (4th Cir.
5 2005); United States v. Montero‐Camargo, 208 F.3d 1122, 1139 (9th Cir.
6 2000) (en banc); United States v. Duguay, 93 F. 3d 346, 350‐51 (7th Cir.
7 1996), while our own court has reached this conclusion summarily,
8 see United States v. Sanders, 208 F.3d 204 (2d Cir. 2000). Indeed, this is
9 consistent with Supreme Court precedent holding that “nervous,
10 evasive behavior is a pertinent factor in determining reasonable
11 suspicion” and that an officer may base such a determination in part
12 on an individual’s “unprovoked flight upon noticing the police.”
13 Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Flight from or intentional
14 avoidance of law enforcement “is not necessarily indicative of
15 wrongdoing, but it is certainly suggestive of such.” Id.
16 The district court thus properly characterized the SUV’s
17 avoidance of the checkpoint as one of multiple factors supporting
18 Gottschall’s reasonable suspicion.
19 B. Proximity to the Border
20 The checkpoint’s proximity to the border also supported
21 Gottschall’s reasonable suspicion. The Supreme Court has held that,
22 as part of a reasonable suspicion determination, “[o]fficers may
23 consider the characteristics of the area in which they encounter a 13 No. 15‐942
1 vehicle,” including “[i]ts proximity to the border.” United States v.
2 Brignoni‐Ponce, 422 U.S. 873, 884‐85 (1975); accord United States v.
3 Tehrani, 49 F.3d 54, 58 (2d Cir. 1995). This is so because national
4 borders uniquely implicate various criminal activities—including
5 contraband smuggling, see, e.g., United States v. Montoya de
6 Hernandez, 473 U.S. 531, 537‐39 (1985), and illegal entry, see, e.g.,
7 United States v. Martinez‐Fuerte, 428 U.S. 543, 551‐53 (1976); Brignoni‐
8 Ponce, 422 U.S. at 878‐79.
9 Compton argues that the court could not rely on the proximity
10 of the border in this case because the government failed to establish
11 that proximity before the district court. This argument fails because
12 the government did present evidence establishing proximity.
13 Gottschall testified that he was “working an immigration
14 checkpoint,” which is a checkpoint set up “to capture anything
15 that’s crossing the border or any criminal activity in the area.” App.
16 51. He testified further that he called the checkpoint the “State Route
17 11 checkpoint,” and that, “[i]t’s in Chateaugay.” App. 71. In
18 Compton’s declaration in support of his motion to suppress,
19 moreover, Compton confirms that at the time of the encounter with
20 the Border Patrol, he was “traveling along route 11 in Chateaugay,
21 New York.” App. 28. It is beyond peradventure that the town of
22 Chateaugay, New York, is on the U.S.‐Canadian border—a fact that
23 we may judicially notice, see, Fed. R. Evid. 201(b)(1) & (2), and one 14 No. 15‐942
1 recognized by the district court when it took “into account . . . the
2 checkpoint’s proximity to the border.” App. 145. The district court
3 did not err in considering that proximity in its reasonable suspicion
4 analysis.
5 C. Peculiar Concealment Attempt
6 A third circumstance supporting Gottschall’s reasonable
7 suspicion was his observation of the peculiar circumstances
8 surrounding the precipitous pepper purchase. When Gottschall
9 pulled up to the vegetable stand at 8:00 a.m., he saw the two
10 brothers walking back to their car at a significant distance from one
11 another, each holding a small packet of peppers.
12 Because Gottschall had already determined that the SUV had
13 made the abrupt turn into the vegetable stand in order to avoid the
14 checkpoint, Gottschall could reasonably interpret the pepper
15 purchase to be an attempt to conceal that avoidance. He could
16 reasonably discount the probability of an alternate explanation, such
17 as a sudden pepper emergency (such predicaments occur
18 infrequently) or a simple desire to avoid a delay (taking the extra
19 time to park a car and go shopping is hardly consistent with a
20 motorist who avoids a checkpoint because he or she is in a hurry).
21 And he could reasonably be suspicious of individuals who appeared
22 to be taking steps to actively deceive law enforcement. 15 No. 15‐942
1 Moreover, the improbability of a pepper emergency occurring
2 immediately upon the appearance of a border checkpoint rendered
3 the brothers’ ruse even more suspicious. A person who resorts to an
4 odd and poorly conceived concealment measure to avoid contact
5 with law enforcement authorities is more likely to be desperate to
6 avoid detection of unlawful activity.
7 Accordingly, the avoidance of the checkpoint, the proximity of
8 the checkpoint to the border, and the rather peculiar attempt to
9 conceal the avoidance of the checkpoint together constituted a
10 sufficient basis for Gottschall’s reasonable suspicion and for the
11 ensuing Terry stop.
12 II. Reasonable Extension
13 Although we have determined that reasonable suspicion
14 justified Gottschall’s Terry stop of Compton at the vegetable stand,
15 we must still determine whether Gottschall’s “actual conduct fell
16 within the permissible scope of a Terry‐type detention.” United States
17 v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992).
18 A Terry stop initially justified by reasonable suspicion may
19 still violate the Fourth Amendment if it is extended unreasonably.
20 This is because, “[i]f an investigative stop based on reasonable
21 suspicion continues too long . . . , it will ripen into a de facto arrest
22 that must be based on probable cause.” Id. Although the Fourth
23 Amendment places “no rigid time limitation on Terry stops,” United 16 No. 15‐942
1 States v. Sharpe, 470 U.S. 675, 685 (1985), “the detention can continue
2 only for the period of time necessary to either verify or dispel the
3 suspicion,” United States v. Watson, 787 F.3d 101, 105 (2d Cir. 2015)
4 (internal quotation marks and alteration omitted).
5 Here, the district court properly rejected Compton’s argument
6 that Gottschall unreasonably extended the Terry stop. Compton
7 maintains on appeal that Gottschall extended the stop in violation of
8 the Fourth Amendment when he ordered Compton and his brother
9 back into the SUV. Compton’s argument fails for two reasons: (1)
10 the Terry stop did not actually begin until Gottschall ordered the
11 brothers back into the SUV, and (2) the stop was reasonable in
12 duration from that point on.
13 A. Beginning of the Stop
14 During a consensual encounter, “officers may permissibly ask
15 questions, such as why the subject is at that location, and may make
16 requests for identification and permission to inspect luggage.”
17 United States v. Peterson, 100 F.3d 7, 10 (2d Cir. 1996). A consensual
18 encounter becomes a Terry stop when “under the circumstances, a
19 reasonable person would have believed that he was not free to
20 leave.” Id. (internal quotation marks omitted).
21 We reject Compton’s argument that the Terry stop began as
22 soon as Gottschall arrived at the vegetable stand. Gottschall testified
23 that, upon arrival, he pulled his Border Patrol vehicle in behind the 17 No. 15‐942
1 SUV in the U‐shaped driveway and turned on his lights “for safety
2 reasons.” App. 82. Gottschall then saw the Comptons emerge from
3 the stand, addressed them, and asked them twice to return to the
4 SUV (the second request following the brothers’ refusal of the first).
5 Because the driveway was U‐shaped, Gottschall’s car did not block
6 the SUV’s egress from the vegetable stand, and he took no other
7 action to restrain the brothers’ movement. A reasonable person
8 would thus have believed that he was not free to leave only at the
9 point when Gottschall requested him to return to the SUV. (The
10 brothers’ initial refusal suggests that, even at that point, they
11 themselves may still have felt free to leave.) Accordingly, we
12 conclude that a consensual encounter began when Gottschall pulled
13 up to the vegetable stand and that the encounter became a Terry stop
14 only when Gottschall ordered the brothers back into the SUV. Cf.
15 Tehrani, 49 F.3d at 58 (recognizing that a police encounter remains
16 consensual “so long as the police do not convey a message that
17 compliance with their requests is required” (internal quotation
18 marks omitted)).
19 B. Duration of the Stop
20 If an investigation conducted during an initial stop
21 “enhance[s] suspicion[] of . . . criminal activities,” an officer may
22 extend the stop in order “to confirm or dispel” that enhanced
23 suspicion. See Bailey, 743 F.3d at 336‐37. 18 No. 15‐942
1 Here, after ordering the brothers into the SUV, Gottschall saw
2 a blanket that “appeared to be concealing some objects” in the back
3 of the car. App. 62. See United States v. Aldaco, 168 F.3d 148, 149 (5th
4 Cir. 1999) (discussing the suspicious nature of “bulky objects
5 covered with blankets in the back of the vehicle,” later determined
6 to be concealing 503 pounds of marijuana). Gottschall’s professional
7 experience led him to suspect that the blanket concealed humans,
8 cigarettes, narcotics, or “something to that effect.” App. 62. We agree
9 with the district court that Gottschall reasonably extended the stop
10 in order to confirm or dispel this enhanced suspicion.
11 Gottschall conducted the extended investigation with
12 reasonable promptness. He radioed Taylor, who arrived with the
13 canine in under a minute. The canine sniff that confirmed the
14 presence of narcotics took no more than five minutes. The Fourth
15 Amendment permits a brief extension of a Terry stop in order to
16 conduct a canine sniff to resolve suspicions enhanced during the
17 initial stop.
18 The fact that the agents placed the brothers in separate police
19 vehicles and handcuffed them during the brief canine sniff does
20 alter our analysis. Compton has abandoned his argument that his
21 handcuffing constituted an arrest without probable cause requiring
22 suppression of the physical evidence under the fruit of the
23 poisonous tree doctrine. See United States v. Cacace, 796 F.3d 176, 188 19 No. 15‐942
1 (2d Cir. 2015). Moreover, because the Border Patrol would have
2 discovered the marijuana without placing the brothers in handcuffs
3 in separate vehicles, the reasonableness of the agents’ actions is not
4 relevant to the admissibility of the physical evidence.
5 Accordingly, we find that Gottschall conducted a Terry stop of
6 Compton that was both justified by reasonable suspicion and
7 extended for a reasonable duration.
8 CONCLUSION
9 For the reasons stated above, we AFFIRM the district court’s
10 judgment denying the motion to suppress the physical evidence.