United States v. Sowers

Opinion

USCA1 Opinion

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



                              
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               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.



                                          5



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


6



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


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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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