UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States
v. Criminal No. 16-cr-96-01-JD Opinion No. 2017 DNH 083 Eric Tanguay
O R D E R
Eric Tanguay is charged with possession of a controlled
substance with intent to distribute in violation of 21 U.S.C. §
841(a)(1). Tanguay moves to suppress all evidence obtained from
a vehicle that he was driving when he was arrested. The
government opposes the motion.
The court held a hearing on the motion to suppress on March
21, 2017. During the hearing, the government presented
testimony from Nashua police officer Adam Rahyo, who
participated in the arrest and search. The defense called no
witnesses.
Standard of Review
The defendant bears a threshold burden to show a Fourth
Amendment violation in support of a motion to suppress. United
States v. Young, 835 F.3d 13, 19 (1st Cir. 2016); see also Rakas
v. Illinois, 439 U.S. 128, 132 n.1 (1978) (“The proponent of a
motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search
or seizure.”). The defendant’s threshold burden includes the
“burden of establishing that he was seized.” United States v.
Fields, 823 F.3d 20, 25 (1st Cir. 2016). Once the defendant
shows that a warrantless search or seizure occurred, the
government bears the burden of showing that the warrantless
search or seizure was nevertheless lawful. United States v.
Winston, 444 F.3d 115, 123–24 (1st Cir. 2006); United States v.
Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).
Background
In the early morning of March 31, 2016, Rayho, dressed in
his police uniform, was on patrol in a marked police SUV. A
little after midnight, Rayho drove by a strip mall parking lot
and noticed a blue Ford SUV (the “Ford”) parked with two people
inside. The Ford was parked 100 to 150 feet from a Taco Bell
restaurant and no other vehicles were around it. Rayho returned
to the lot about twenty minutes later and noticed that the
Ford was still there. Rayho knew that most of the businesses
located around the lot were closed but that the Taco Bell and a
24-hour gym remained open. Rayho became concerned about the
Ford because it was parked alone. Based on his concern, Rayho
entered the lot and approached the Ford. The time was 12:29
a.m.
2 Rayho parked his car seven to ten feet behind the Ford.
Rayho then turned on his rear blue strobe lights, which
pointed away from the Ford. Rayho did so because the parking
lot was dark and he wanted to alert any officer providing
backup as to his location. Rayho also turned on his front
spotlights,1 which illuminated the interior of the Ford.
Rayho testified that he turned these lights on for officer
safety purposes.
Rayho then approached the Ford on the driver’s side. Using
his flashlight to illuminate the Ford’s interior, Rayho began a
conversation with Tanguay, the driver, and Jacqueline Westley,
the passenger. Rayho asked Tanguay and Westley for their names,
which they gave him. Rayho recognized the name “Eric Tanguay”
because a confidential informant in an unrelated investigation
had told him that someone with that name was involved in using
and distributing controlled narcotics. Rayho then asked Tanguay
and Westley what they were doing in the parking lot. They told
Rayho that they were eating food from Taco Bell. Rayho then
joked with them that he also enjoyed eating food from Taco Bell.
Rayho saw that both Tanguay and Westley were, in fact, eating
Taco Bell food.
1 Although Rayho called these lights “takedown lights,” he testified that they were essentially spotlights.
3 Rayho asked Tanguay and Westley for identification. They
responded that they did not have a driver’s license with them.
Tanguay also informed Rayho that he did not own the Ford. Rayho
asked Tanguay if there were any weapons or drugs in the car, and
Tanguay said there were not.
Rayho asked Tanguay if it would be all right if he returned
to his cruiser to run a records check on him. Rayho testified
that one of the reasons he made this request was to determine if
the Ford had been reported as stolen. Tanguay agreed and
assured Rayho that he had a valid driver’s license. As Rayho
was returning to his cruiser, he noticed that Officer Jonathan
Earnshaw had arrived to provide backup. Earnshaw’s cruiser was
parked behind Tanguay’s vehicle. About a minute into the
records check, Rayho observed Westley crouching down and
appearing to reach under the seat. Rayho was concerned about
Westley’s movements. As a result, he immediately stopped the
records check, exited his cruiser, and walked back to the
driver’s side of the Ford.
When Rayho got to the Ford, he noticed that Westley was
sitting upright in her seat. Rayho then asked Tanguay again
whether he had any identification. This time, Tanguay said that
his driver’s license was in the trunk and asked if he could
retrieve it. Rayho agreed to let Tanguay show him the location
of his license but said that he would prefer to retrieve the
4 license for officer safety reasons. Tanguay got out of the
Ford, and, as he did, Rayho observed what appeared to be the
butt of a pistol tucked into the driver’s side door.
Tanguay and Rayho walked to the rear of the Ford. Tanguay
told Rayho that his license was in a backpack in the trunk.
After the trunk was opened, Tanguay informed Rayho that his
license was inside a wallet in a small pouch of the backpack.
Rayho retrieved the wallet from the backpack and removed
Tanguay’s driver’s license. Rayho noticed a large amount of
currency in the wallet, which Tanguay told him totaled around
$2,000.2 Rayho also noticed that the largest compartment of the
backpack was secured with a padlock.
While still at the rear of the Ford, Rayho asked Tanguay
about the gun in the driver’s side door. Tanguay told Rayho
that it was a BB gun and apologized for not telling Rayho about
it earlier. Tanguay also told Rayho that he had a conceal carry
permit but did not have that with him.
Rayho told Tanguay that he was going to check the gun to
determine whether it was a BB gun. Before checking the gun,
Rayho asked Westley to get out of the Ford, which she did.
After checking the gun, Rayho concluded that it was, in fact, a
BB gun. Rayho then asked Tanguay for consent to search the
2 Rayho testified that the money in Tanguay’s wallet was subsequently counted and that it totaled around $2,800.
5 remainder of the Ford.3 Tanguay responded that such a search was
“fine.”
During the search, Rayho, with the help of his flashlight,
peered under the passenger’s seat where Westley had been
sitting. There he found a partially opened black sunglass case,
which held a hypodermic needle. Rayho removed the sunglass
case, which was already partially opened, and opened it the rest
of the way. Rayho saw that the hypodermic needle was loaded and
contained a brownish liquid. Based on Rayho’s training, he
believed that the brown liquid was either heroin or fentanyl.
The sunglass case also contained a pill, a cotton ball, and a
form of Narcan, which is a medication used to treat opiate
overdoses.
After discovering the sunglass case, Rayho asked Westley if
she could come to the front of the Ford to speak with him.
Westley agreed, and Rayho asked her what she and Tanguay had
been doing that night. Initially, Westley said that she and
Tanguay had the Ford all evening and were at their friend Dennis
Higgins’s house. When confronted with the loaded hypodermic
needle, however, Westley told Rayho that her friend Danielle had
borrowed the Ford while they were at Higgins’s house. Westley
did not provide any information about Danielle. Rayho then
3 Rayho’s affidavit states that he requested Tanguay’s consent to search the Ford “for weapons.”
6 asked Westley again if she had a driver’s license and this time
she retrieved a temporary New Hampshire driver’s license from
her purse.
Rayho then asked Tanguay if he could speak with him.
Tanguay agreed. During their conversation, Tanguay told Rayho
that he and Westley had been at Higgins’s house that night but
that no one had borrowed the Ford while they were there.
Tanguay also told Rayho that he saw Westley with the sunglass
case and that he believed that there were drugs in the case
because he knew that Westley was a drug user. Rayho then
arrested Westley, who was taken to the Nashua Police Department.
Rayho and Tanguay then moved to the rear of the Ford where
Rayho asked Tanguay about the lock on his backpack. Rayho
observed that Tanguay appeared to become very nervous. Tanguay
stared back at Rayho, as if he were trying to think of an
answer. Tanguay eventually told Rayho that an “unknown
individual” had placed a lock on the backpack. Rayho arrested
Tanguay at approximately 12:55 a.m. for possession of drugs in a
motor vehicle. Earnshaw drove Tanguay to the police station.
7 Rayho tried to call the registered owner of the Ford but was
unsuccessful. Because he could not locate the owner, Rayho
called a tow truck to remove the Ford from the lot. Rayho
removed Westley’s purse, the backpack, and two cell phones in
order to bring them back to the police department. Rayho also
completed an inventory form documenting the items left in the
Ford. During this process, Rayho completed a records check on
the Ford and determined that the Ford had not been reported as
being stolen. The Ford was then towed to an independent tow
yard. At the police station, the purse was placed with
Westley’s personal property and the cell phones were placed with
Tanguay’s personal property. Rayho kept the backpack for
safekeeping and because he wanted to ask Tanguay about it.
At around 3:30 a.m., Tanguay agreed to a post-Miranda,
unrecorded interview.4 Rayho brought the backpack into the
interview room and asked Tanguay about it. Tanguay sighed and
put his hands on his head. He told Rayho that the backpack was
his. He then informed Tanguay that he believed that there was
something illegal in the backpack. He further elaborated that
an unnamed person had put three to five illegal items in his
backpack earlier and then placed the lock on it. Tanguay also
Before beginning the interview, Rayho reviewed Tanguay’s 4
Miranda rights with him, and Tanguay signed a form indicating that he understood those rights.
8 asked Rayho what his bail would be if there were multiple
illegal items in his backpack. Rayho responded that he did not
know what the bail would be because he was not a bail
commissioner.5
Rayho then asked Tanguay for his consent to search the
backpack. Rayho informed Tanguay that he could refuse to consent
but that he believed there was probable cause for a search
warrant. Rayho also informed Tanguay that because of the time
he would not seek a warrant until later in the day. Rayho
explained to Tanguay that if he refused to consent to the
search, his bail would be set for his misdemeanor charges but
other charges might follow at a later date if he found anything
illegal in the backpack. Tanguay consented to a search of the
backpack.
Tanguay’s consent was memorialized in a Nashua Police
Department consent to search form. Rayho prepared the form by
filling in the necessary information, including indicating that
the item to be searched was Tanguay’s backpack. After filling
out the form, Rayho gave it to Tanguay to read. The form, as
completed, provided that Tanguay had “been informed of [his]
Constitutional Right not to have a search made of my [backpack]
5 At some point during the interview, the Bail Commissioner entered the room and asked Rayho if the interview was done. Rayho responded that the interview had not yet finished.
9 without a Search Warrant and of my right to refuse to consent to
such a search.” Tanguay informed Rayho that he understood the
form and had no questions. Tanguay then signed the form.
Rayho next removed the lock with bolt cutters. Inside the
main compartment Rayho found several items, including pills,
which he believed were prescription medication, 49.1 grams of
methamphetamine, 30.94 grams of fentanyl, drug paraphernalia,
and an electric scale. Rayho also found pieces of mail that had
Tanguay’s name on them.
Discussion
Tanguay contends that the evidence obtained from the Ford
and the backpack should be suppressed because it is the result
of illegal seizures and searches. In support, Tanguay argues
that Rayho stopped him without any legal basis and that the stop
exceeded the scope of the Fourth Amendment’s limits. Tanguay
also argues that the evidence should be suppressed because the
warrantless searches of the Ford and the backpack violated the
Fourth Amendment.
In response, the government argues that Rayho properly
stopped Tanguay and that the search of the Ford was justified
based on the consent exception to the warrant requirement. The
government also contends that the search of the backpack was
10 justified under the consent, automobile, and inevitable
discovery exceptions to the warrant requirement.
I. Seizure
The Fourth Amendment protects “the right of people to be
secure . . . against unreasonable searches and seizures.” U.S.
Const. Amend. IV. The Fourth Amendment’s protections against
unreasonable seizures “apply not only to traditional arrests,
but also to . . . brief investigatory stops generally known as
Terry stops.” Fields, 823 F.3d at 25 (internal quotation marks
omitted).
For a stop to be legal, it must be objectively reasonable
based on two inquiries. United States v. Arnott, 758 F.3d 40,
43 (1st Cir. 2014). First, “police are not allowed to make an
initial stop unless they have a reasonable, articulable
suspicion about an individual's involvement in some criminal
activity.” Id. Second, “[i]f the initial stop passes muster,
actions undertaken during the course of the stop must be
reasonably related in scope to the stop itself unless the police
have a basis for expanding their investigation.” Id. (internal
quotation marks omitted).
Tanguay argues that Rayho illegally stopped him when Rayho
approached the Ford and began asking him questions. In support,
Tanguay asserts that the Ford was legally parked and he and
11 Westley were doing nothing ostensibly illegal. In addition,
Tanguay contends that the scope of the stop exceeded the limits
for Terry stops.
In response, the government argues that the initial
interaction between Rayho and Tanguay was a consensual
encounter, not a stop implicating the Fourth Amendment’s
protections. Additionally, the government contends that
although this encounter eventually became an investigatory stop,
that was justified by reasonable suspicion. The government also
argues that the stop was not illegal in scope because Rayho’s
actions were justified based on the circumstances that existed
as the encounter progressed and events unfolded.
A. Initial Encounter
The parties agree that an investigatory stop occurred at
some point during the encounter. They disagree, however, about
when that occurred. Tanguay contends that the encounter became
a stop almost immediately and that there was no reasonable
suspicion to support a stop at that time. The government, on
the other hand, argues that Rayho did not initiate a stop until
he learned that Tanguay did not have a license and was not the
registered owner of the Ford.
“Not every police-initiated conversation is a seizure.”
United States v. Espinoza, 490 F.3d 41, 48 (1st Cir. 2007).
12 Rather, some interactions with police are consensual
encounters that do not implicate the Fourth Amendment’s
protections. Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984).
For instance, “a law enforcement officer does not trigger an
individual's Fourth Amendment protections simply by
approaching the person in public and asking routine
questions.” Espinoza, 490 F.3d at 48. Similarly, “[a]s a
matter of law, approaching a parked car and questioning the
occupant does not necessarily rise to the level of a Terry
stop.” United States v. Taylor, 511 F.3d 87, 91 (1st Cir.
2007) (internal quotations omitted).
A police officer’s interaction with a person becomes a
seizure when the officer makes a “show of authority.” Fields,
823 F.3d at 25. A show of authority occurs when “in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” Id.
(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
This test “focuses on whether the conduct of law enforcement
objectively communicates that law enforcement is exercising its
official authority to restrain the individual's liberty of
movement.” Id. (internal quotation marks omitted). The burden
is on Tanguay “to establish the show of authority that is the
13 necessary predicate for his claimed Fourth Amendment violation.”
Fields, 823 F.3d at 31.
The Supreme Court has identified the following non-
exhaustive circumstances that might indicate a seizure: “(1) the
threatening presence of several officers; (2) the display of a
weapon by an officer; (3) some physical touching of the person;
and (4) the use of language or tone of voice indicating that
compliance with the officer's request might be compelled.”
United States v. Smith, 423 F.3d 25, 29 (1st Cir. 2005) (citing
Mendenhall, 446 U.S. at 554). Beyond those factors, the First
Circuit has also assessed the degree to which police restricted
or obstructed a person’s freedom of movement. See Taylor, 511
F.3d at 91-92 (finding no seizure where parked car “was not in
fact hemmed in from all sides and could have driven forward and
turned left to exit the parking lot”).
Tanguay contends that the combination of the two officers
on the scene, Rayho’s activation of his vehicle’s spotlights and
rear-facing strobe lights, and Rayho’s use of his flashlight
signaled that he was not free to leave. In response, the
government argues that the totality of the circumstances did not
constitute a seizure.
In this case, Rayho parked seven to ten feet behind the
Ford. Based on that distance and the fact that the Ford was in
an empty part of the parking lot, Tanguay could have driven out
14 of the lot. When Rayho approached the Ford, its engine was
running, and Rayho did not tell Tanguay to shut it off until
later when he arrested him. During their initial conversation,
Rayho asked Tanguay and Westley routine and non-accusatory
questions. His tone was upbeat and friendly, and he did not
instruct Tanguay that he had to stay in the lot. Further,
Rayho’s weapon remained holstered, and there is no evidence that
he touched Tanguay or Westley. These facts weigh in favor of a
conclusion that the initial encounter between Rayho and Tanguay
was consensual.
Although Earnshaw was at the scene providing backup, his
arrival was not a threatening presence that would weigh in favor
of finding that a seizure occurred. As an initial matter, the
record is unclear about when Earnshaw arrived and whether he was
in a position in which Tanguay could initially see him. In any
case, there is no evidence that Earnshaw did anything to block
Tanguay’s exit, and during the initial encounter Earnshaw did
not speak to, approach, or touch Tanguay or Westley. See
Fields, 823 F.3d at 28 (no seizure where four officers providing
backup did not block suspect or participate in encounter).
Moreover, the addition of one officer providing backup does not
amount to “the threatening presence of several officers.”
Smith, 423 F.3d at 29 (emphasis added); see also Fields, 823
F.3d at 28 (four officers not a seizure).
15 Tanguay also argues that Rayho’s use of his vehicle’s
spotlights and his flashlight to illuminate the Ford signaled
that he was not free to leave. Generally, the use of lights,
including spotlights, to illuminate a vehicle in the dark does
not convert an otherwise consensual encounter into a seizure.
See Texas v. Brown, 460 U.S. 730, 739-40 (1963); United States
v. Lawhorn, 735 F.3d 817, 820 (8th Cir. 2013) (“[The] act of
shining a spotlight on a person's car typically does not
constitute a seizure.”); United States v. Douglass, 467 F.3d
621, 624 (7th Cir. 2006) (holding that officer’s use of
flashlights was “insignificant” under free to leave test); State
v. Baker, 107 P.3d 1214, 1218 (Idaho 2004) (“This Court joins
the many other jurisdictions which have held that the use of a
spotlight alone would not lead a reasonable person to believe
that he was not free to leave, though it may be considered under
the totality of the circumstances.”); People v. Cascio, 932 P.2d
1381, 1388 (Colo. 1997) (flashlights and spotlights used “as a
matter of practical necessity as the encounter took place when
it was getting dark, and we do not attribute any significance to
their use”).
Here, there is no evidence that Rayho used his spotlight or
flashlight for any purpose other than illuminating the Ford as
he approached. Nor is there any evidence that Rayho used the
spotlight or flashlight in an intrusive manner. Given these
16 facts, and the time when the encounter occurred, Rayho’s use of
his spotlight and flashlight do not weigh in favor of finding a
show of authority.
Rayho’s use of his rear emergency lights presents a closer
question. While a vehicle is in motion, the sight of emergency
lights is an unmistakable signal to the driver that he must stop
and pullover. United States v. Woodrum, 202 F.3d 1, 9 (1st Cir.
2000). Nevertheless, where, as here, a vehicle has stopped
voluntarily, “[c]ourts . . . recognize that under some
circumstances, an officer's conduct in pulling behind a parked
vehicle and activating a squad car's flashing lights does not
result in a seizure.” United States v. Cook, 2015 WL 224721, at
*3 (D. Minn. Jan. 15, 2015) (collecting cases), aff’d, 842 F.3d
597 (8th Cir. 2016); United States v. Clements, 522 F.3d 790,
794–95 (7th Cir.2008) (finding no seizure where officers used
flashing lights to identify themselves before approaching parked
vehicle at night).
Moreover, a number of courts have concluded that the
activation of rear-facing emergency lights does not necessarily
convert a consensual encounter into a seizure. See People v.
Biagi, 68 N.E.3d 829, 837–38 (Ill. App. Ct. 2017) (takedown
lights and rear emergency lights do not indicate seizure);
VanLowe v. State, 2014 WL 5780229, at *3-4 (Tex. App. Nov. 6,
2014) (not designated for publication); United States v. Mabery,
17 686 F.3d 591, 594, 596 (8th Cir. 2012); State v. Steeves, 158
N.H. 672, 676 (2009) (officer “did not effectuate a seizure by
activating the rear blue lights”); Clarke v. Com., 527 S.E.2d
484, 491 (Va. Ct. App. 2000).
Here, Rayho did not activate his vehicle’s front-facing
lights, and thus did not employ the signal that police
ordinarily use to communicate to a motorist that he or she must
stop. United States v. Cook, 842 F.3d 597, 601 (8th Cir. 2016)
(no seizure where officer’s use of overheard wig-wag lights was
“different from the full light bar which is used to notify
motorists in moving vehicles that they are required to stop”).
Moreover, the strobe lights that Rayho did employ were pointing
away from Tanguay and the Ford. Finally, there are valid safety
reasons why an officer would activate his vehicle’s rear
emergency lights during a consensual encounter occurring in the
dark, including signaling his presence to others drivers and
those with whom he is about to interact. Under these
circumstances, and given the absence of any other coercive
police conduct, the court concludes that a reasonable person in
Tanguay’s position would not have believed that Rayho’s use of
rear-facing strobe lights was a show of authority.
Therefore, based on the totality of the circumstances, the
initial encounter between Rayho and Tanguay was a consensual
18 encounter that did not implicate the Fourth Amendment’s
protections.6
B. Initial Justification for Stop
The government concedes that Rayho’s encounter with Tanguay
and Westley eventually became an investigatory stop. It argues,
however, that the stop was justified because Rayho had
reasonable suspicion that criminal activity was afoot. In
support, the government points to the fact that Tanguay said
that he did not have a license with him and was not the owner of
the Ford. In response, Tanguay argues that there was no
reasonable suspicion of criminal activity at that time.
As discussed above, police may conduct Terry stops when
they have “a reasonable, articulable suspicion about an
individual's involvement in some criminal activity.” Arnott,
758 F.3d at 43. That suspicion must be “grounded in specific
and articulable facts,” which “must amount to more than a
mere hunch but less than probable cause.” United States v.
6 Tanguay argues that Rayho’s testimony demonstrates that “[h]e did not believe the defendant could pull away while he [was] having conversation with him.” The testimony Tanguay cites involved a hypothetical in which Tanguay sped away and “ran over” Tanguay’s foot or attempted to injure him. That hypothetical does not resemble the evidence concerning the encounter at issue. More importantly, however, the subjective intent of Rayho “is irrelevant except insofar as that may have been conveyed to the respondent.” United States v. Mendenhall, 446 U.S. 544, 555 (1980); see also Brendlin v. California, 551 U.S. 249, 259-60 (2007).
19 Arias, No. 15-1946, 2017 WL 655758, at *3 (1st Cir. Feb. 17,
2017) (internal quotation marks omitted). In determining
whether reasonable suspicion existed, the court applies “an
objective standard, rather than assessing the subjective
intent of an individual officer” and considers “the totality
of the circumstances.” United States v. Tiru-Plaza, 766 F.3d
111, 116 (1st Cir. 2014). The government bears the burden of
showing that reasonable suspicion existed. Woodrum, 202 F.3d
at 7.
After their initial conversation, Tanguay, who was behind
the wheel of a vehicle with a running engine, told Rayho that he
did not have a driver’s license with him and that he was not the
registered owner of the Ford. Tanguay’s lack of identification
and his use of a vehicle owned by someone else provided
reasonable suspicion that the Ford had been stolen.7 See United
States v. Cardona-Vicente, 817 F.3d 823 (1st Cir. 2016) (“The
driver of the car could not produce a driver's license,
suggesting the Jeep may have been stolen.”); Tiru-Plaza, 766
F.3d at 117 (“Morales failed to provide the police officers
with a driver's license and a legible car registration.
Under these circumstances, it was reasonable for the officers
7 The mere fact that Tanguay did not have a license on him raises some level of suspicion, given that New Hampshire drivers are required to be in possession of their licenses while driving. See RSA 263:2.
20 to suspect that the car might have been stolen.”); see also
United States v. Hughart, 645 F. App’x 678, 683 (10th Cir.
2016) (officer had reasonable suspicion to detain driver
after determining during the course of a consensual
interaction that he did not have a license). Accordingly,
the investigative stop was initially justified by reasonable
suspicion.
C. Scope of the Stop
Tanguay contends that the scope of the stop exceeded
legal limits. In support, Tanguay focuses on the events
after Rayho abandoned the records check, which, he contends,
were overly intrusive and proceeded despite the lack of
reasonable suspicion. Further, Tanguay argues that the
duration of the stop was too long. In response, the government
contends that the scope of the stop was justified.
“Because a Terry stop allows an individual to be seized
on less than probable cause, the extent of that intrusion
must be limited.” United States v. Pontoo, 666 F.3d 20, 30
(1st Cir. 2011). “If police actions associated with a Terry
stop are too intrusive in nature or too long in duration,
those limits are exceeded.” Id. When a Terry stop exceeds
its proper scope, it becomes a de facto arrest, requiring
21 probable cause. United States v. Young, 105 F.3d 1, 6 (1st
Cir. 1997).
A de facto arrest occurs when “in light of the totality of
the circumstances a reasonable person in the suspect's position
would have understood [his] position to be tantamount to being
under arrest.” United States v. Candelario-Santana, 834 F.3d 8,
18 (1st Cir. 2016) (internal quotation marks omitted), cert.
denied, 137 S. Ct. 1112 (2017). In making this determination,
courts look to, among other things, “the length of the
detention, the restrictions placed on an individual's
personal movement, the force (if any) that was exerted, the
information conveyed to the detainee, and the severity of the
intrusion.” Pontoo, 666 F.3d at 30 (quoting United States v.
Sowers, 136 F.3d 24, 28 (1st Cir. 1998)). “Above all, an
inquiring court must bear in mind that ‘it would be
unreasonable to require that police officers take unnecessary
risks in the performance of their duties.'” Id. (internal
Whether a stop is appropriate in duration “is gauged by
whether the officer diligently pursued a reasonable
investigative approach calculated to ensure officer safety
and, at the same time, confirm or dispel his suspicions.”
Id. at 31 (quoting United States v. Sharpe, 470 U.S. 675,
686-86 (1985)). A stop runs afoul of the Fourth Amendment when
22 an officer engages in investigative activity, absent reasonable
suspicion, that prolongs the stop beyond the time reasonably
required to complete its objective, which includes attending to
“safety concerns.” See United States v. Rodriguez, 135 S. Ct.
1609, 1615 (2015). Nevertheless, an officer may conduct certain
unrelated inquiries “so long as [they] do not measurably extend
the duration of the stop.” Id. The government “bears the
burden of demonstrating that [the] stop fell within the scope of
Terry.” Acosta-Colon, 157 F.3d at 19-20.
As discussed above, Rayho had a reasonable suspicion that
the Ford had been stolen when Tanguay informed him that he did
not have a license and was not the Ford’s owner. After
acquiring this information, Rayho returned to his vehicle to
conduct a records check. This was a reasonable investigative
approach to confirm or dispel his suspicions about the Ford.
See United States v. Owens, 167 F.3d 739, 749 (1st Cir. 1999).
Rayho aborted the records check, however, after observing
Westley furtively reach under the seat. That decision was both
reasonable and justified based on officer safety concerns.
Westley could have been reaching for a weapon or concealing
contraband, and Rayho’s decision to immediately assess the
situation was justified under the circumstances.
When Rayho returned to the driver’s side of the Ford, his
reasonable suspicion concerning whether the Ford had been stolen
23 remained. In fact, Westley’s furtive movement added to Rayho’s
suspicions that criminal activity might be afoot. At that
point, Rayho used a reasonable investigative approach to confirm
or dispel his suspicions by asking Tanguay additional questions
about his license.
Tanguay argues that the stop escalated to a de facto arrest
when he and Rayho walked to the back of the Ford to retrieve his
driver’s license. Tanguay asserts that this encounter was a de
facto arrest because Rayho compelled him to reveal the location
of his license and then forced him to walk to the back of the
Ford to retrieve it. The record does not support Tanguay’s
theory.
When Rayho asked Tanguay if he had his license the second
time, Tanguay told him it was in the back of the Ford and then
volunteered to retrieve it. There is no evidence that Rayho
coerced Tanguay to reveal the location of his license or to
accompany him to the back of the Ford. The only restriction
that Rayho placed on Tanguay during this time was when he told
him that he preferred, for officer safety purposes, to reach
into the backpack to retrieve the license. That de minimis
restriction on Tanguay’s freedom of movement, however, falls far
short of the coercive action necessary to signal to a reasonable
person that he is under arrest. See United States v. Fornia-
Castillo, 408 F.3d 52, 64-65 (1st Cir. 2005) (no de facto arrest
24 where officer handcuffed suspect and drew his weapon).
Moreover, that restriction was justified based on the obvious
safety risk of allowing a suspect to reach into a bag that could
conceal weapons, particularly in view of the fact that when
Tanguay got out of the Ford, Rayho had seen what appeared to be
the butt of a pistol tucked into the side of the driver’s door.
In addition, Tanguay argues that the stop became a de facto
arrest when he was required to stand with Earnshaw while Rayho
checked the BB gun. Once Rayho observed what appeared to be a
firearm in the Ford, it was reasonable for him to temporarily
seize the suspected firearm as a safety precaution.8 Directing
Tanguay to stand near Earnshaw while he assessed the danger
posed by the suspected firearm was of minimal intrusiveness and
would not have signaled to a reasonable person that he was under
arrest. See United States v. Campa, 234 F.3d 733, 738–39 (1st
Cir. 2000) (directing suspects to move a few steps to another
room did not result in a de facto arrest). There is no evidence
8 Flanegan v. O’Leary, 2015 WL 5311271, at *3 (W.D. Pa. Sept. 11, 2015) (upholding temporary seizure of gun during traffic stop); United States v. Reynolds, 2009 WL 1090674, *10 (D.Me. Apr. 21, 2009) (holding that temporary seizure of gun was a reasonable precaution during investigation); see also United States v. Koepnick, 2011 WL 134102, *1 (9th Cir. Jan.13, 2011) (noting that “every circuit to confront [the] question” of whether police may temporarily seize a gun while executing a warrant has upheld the practice as “a reasonable safety precaution”); United States v. Timpani, 665 F.2d 1, 5 (1st Cir. 1981)(police may seize weapons while executing search warrant).
25 that Earnshaw physically restrained Tanguay, used any force, or
that either officer told Tanguay that he was under arrest.
There is no other evidence in the record that would demonstrate
the level of coercion necessary to escalate the encounter to a
de facto arrest.
Tanguay also argues that Rayho improperly extended the stop
after checking the BB gun because at that point there was no
observable criminal activity. Rayho still had been unable to
confirm or deny his suspicions concerning whether the Ford was
stolen. Moreover, he now knew that Tanguay had lied to him
about having his license and had not told him about the BB gun
in the front door when he had asked whether there were any
weapons in the Ford. Under these circumstances, Rayho was
justified in continuing his investigation.
In any case, Rayho’s next investigative activity was asking
Tanguay for consent to search the car, a question that did not
appreciably extend the stop and one for which no reasonable
suspicion is necessary. Florida v. Bostick, 501 U.S. 429, 429
(1991) (“Even when officers have no basis for suspecting a
particular individual, they may generally ask the individual
questions . . . and request consent to search luggage . . .
provided they do not convey a message that compliance with their
requests is required.”) (internal citations and quotations
omitted)); United States v. Turvin, 517 F.3d 1097, 1103–04 (9th
26 Cir. 2008) (officer’s “request for consent to search did not
unreasonably prolong the duration of the stop”).
Finally, Tanguay contends that the duration of the stop was
too long because, by his estimate, it was at least thirty
minutes. The court disagrees. On the whole, Rayho’s actions
throughout the sequence of events were reasonably calculated
investigative measures designed to confirm or dispel his
suspicions or to protect his safety. Moreover, given the
unfolding events of the stop, Tanguay’s thirty-minute estimate
is not an unreasonably long duration. The First Circuit has
upheld similar traffic stops that were longer in duration. See
Owens, 167 F.3d at 749 (fifty-five minute stop necessary to
determine whether driver had license and whether passenger had
authority to drive car); United States v. Sowers, 136 F.3d 24,
28 (1st Cir. 1998) (upholding stop of “at least thirty
minutes”).
II. Consent to Search the Ford
Tanguay argues that the evidence from the backpack should
be suppressed because it is a fruit of the illegal search of the
Ford. In support, Tanguay asserts that the when Rayho obtained
his consent to search the Ford, it amounted to “a coerced
consent to search.” In response, the government argues that it
obtained Tanguay’s consent lawfully.
27 “Consensual searches are a recognized exception to the
Fourth Amendment's warrant requirement, but the government bears
the burden to prove by a preponderance of the evidence that
defendant or an authorized third party gave the consent
voluntarily.” United States v. Pérez-Díaz, 848 F.3d 33, 39 (1st
Cir. 2017) (quoting United States v. Vanvliet, 542 F.3d 259, 264
(1st Cir. 2008)). “Whether the consent was given voluntarily is
a question of fact that ‘turns on the district court's
comprehensive assessment of the totality of the circumstances
attending the interaction between defendant/third party and the
searching officers.’” Id. (internal quotation marks omitted).
“Factors to be weighed in making this comprehensive assessment
include, but are not limited to, (i) the consenter's age,
education, past experiences, and intelligence; (ii) whether law
enforcement officials advised the consenter of his
constitutional right to refuse consent; (iii) the length and
conditions of the consenter's detention and/or questioning; and
(iv) law enforcement officials' use of any inherently coercive
tactics.” Id. (internal quotation marks omitted).
Before Rayho requested consent to search the Ford, the
encounter resembled an ordinary, non-coercive traffic stop.
Rayho had attempted to determine if Tanguay had a driver’s
license and to check the records of the Ford. Although Tanguay
did exit the vehicle, he did so voluntarily and not under any
28 coercion. Neither officer used coercive language, spoke in a
threatening tone, drew a weapon, or used physical force against
either Westley or Tanguay. Rather, most of the encounter
proceeded with Rayho making requests and Tanguay agreeing to
those requests. Finally, the entire encounter lasted under
thirty minutes and was not the type of lengthy detention that
could undermine a finding a voluntariness.
In addition, the evidence concerning Rayho’s interactions
with Tanguay do not suggest that he was intimidated in a way
that would render his consent involuntary. Throughout the
encounter, Tanguay interacted with Rayho in an intelligent and
confident manner. He agreed to a records check and assured
Rayho that he had a valid driver’s license. He also assured
Rayho that the suspected firearm was merely a BB gun. Finally,
his response that it was “fine” for Rayho to search the Ford
also demonstrates a lack of vulnerability.
The only factor that might weigh against a finding of
voluntariness is that Rayho did not inform Tanguay that he had a
right to refuse to consent to search. That factor alone,
however, is not dispositive. Brake, 666 F.3d 800, 806 (1st Cir.
2011) (observing that “there is no requirement that the person
who gave consent must have been explicitly advised of the right
to withhold it”). Based on the totality of the circumstances
29 presented here, the court finds that Tanguay voluntarily gave
consent for Rayho to search the Ford.
III. Warrantless Search of the Backpack
Tanguay contends that the contents of the backpack should
be suppressed because it was searched pursuant to an illegal
inventory search of the Ford. In support, Tanguay argues that
Rayho did not catalogue the backpack or deposit it in the
locker, as the Nashua Police Department’s inventory search
policy required. Tanguay also argues that Rayho did not obtain
a warrant before searching the backpack, as the inventory search
policy required for locked containers. In response, the
government does not argue that a valid inventory search
occurred. Rather, the government argues that the search of the
backpack was valid under the consent exception, the automobile
exception, and the inevitable discovery exception to the warrant
requirement.
The court focuses on the automobile exception because it is
dispositive. “Under the ‘automobile exception' to the Fourth
Amendment, police officers may seize and search an automobile
prior to obtaining a warrant where they have probable cause to
believe that the automobile contains contraband.” United States
v. Silva, 742 F.3d 1, 7 (1st Cir. 2014). Under this exception,
“if probable cause justifies the search of a lawfully stopped
30 vehicle, it justifies the search of every part of the vehicle
and its contents that may conceal the object of the search.”
United States v. Goncalves, 642 F.3d 245, 249–50 (1st Cir. 2011)
(quoting Wyoming v. Houghton, 526 U.S. 295, 301 (1999)).
Accordingly, the exception permits “a probing search of
compartments and containers within the automobile so long as the
search is supported by probable cause.” California v. Acevedo,
500 U.S. 565, 570 (1991) (internal quotation marks omitted)
(allowing police to conduct warrantless search of bag located in
trunk of car).
The exception “is not restricted temporally” and thus there
is “no requirement that the warrantless search of a vehicle
occur contemporaneously with its lawful seizure.” United States
v. McHugh, 769 F.2d 860, 865 (1st Cir. 1985). Accordingly,
under the exception, law enforcement may seize the vehicle,
relocate it to the police station, and search its contents
there. United States v. Lopez, 380 F.3d 538, 545 (1st Cir.
2004). Likewise, the automobile exception allows law
enforcement to seize a vehicle, remove any containers that
they have probable cause to believe are concealing
contraband, and search those containers without a warrant so
long as the search is done within a reasonable time frame.
United States v. Johns, 469 U.S. 478, 485-86 (1985) (allowing
31 warrantless search of containers three days after being
removed from trucks); United States v. Oliver, 363 F.3d 1061,
1068 (10th Cir. 2004) (“[B]ecause police had probable cause to
believe that package in automobile contained contraband,
automobile exception permitted package's warrantless seizure and
subsequent search at police station.” (internal citation
omitted)); United States v. Albers, 136 F.3d 670, 674 (9th
Cir. 1998).9
To take advantage of the automobile exception, “the
government must demonstrate that law enforcement officers had a
belief, reasonably arising out of circumstances known to the
seizing officer, that the vehicle contained that which by law is
subject to seizure.” United States v. Bucci, 582 F.3d 108, 117
(1st Cir. 2009). This standard is satisfied “when the totality
of the circumstances create a fair probability that evidence of
a crime will be found in a particular place.” United States v.
White, 804 F.3d 132, 136 (1st Cir. 2015), cert. denied. 136 S.
Ct. 1229 (2016).
The government contends that the automobile exception
applies here because Rayho had probable cause to believe that
9 Wayne R. LaFave, 3 Search and Seizure § 7.2(d) n.161 (5th ed. 2016) (“[I]f there is probable cause as to a package in the vehicle, the package may be removed and then may be searched without a warrant with a reasonable time after its removal from the vehicle.” (internal quotation marks omitted).
32 the Ford and the backpack contained contraband. The facts
support the government’s argument. At the time of the
search, Rayho had already discovered what appeared to be
narcotics and drug paraphernalia in a sunglass case inside
the Ford. Evidence of narcotics or drug paraphernalia found
in a vehicle supports probable cause to search the entire
vehicle for narcotics. United States v. Staula, 80 F.3d 596,
603 (1st Cir. 1996) (“Here, [the officer's] discovery of the
marijuana gave him probable cause to continue to hunt within
the passenger compartment for more contraband.”); see also
United States v. Barmore, 2017 WL 672040, at *1 (5th Cir. Feb.
20, 2017) (attempt to conceal drug pipe provided probable cause
“to believe that there were other items of contraband related to
illegal drug activity in the truck”); United States v. Richmond,
577 F. Appx. 627, 628 (8th Cir. 2014) (discovery of drugs in
vehicle provided probable cause to believe the rest of vehicle
contained narcotics).
Moreover, other facts would have led a reasonable person to
conclude that the Ford contained contraband. Rayho had evidence
that Tanguay and Westley were involved in either drug use or
trafficking. A confidential informant had told Rayho that a
person with the name “Eric Tanguay” was involved in drug use and
distribution. The presence of drugs in the Ford and the fact
33 that Tanguay’s wallet contained a large amount of cash also
suggested that Tanguay was involved in narcotics distribution.
Further, Tanguay himself had informed Rayho that he assumed the
sunglass case contained drugs because Westley was a drug user.
Finally, Tanguay and Westley’s behavior suggested that they
were concealing contraband in the Ford and, specifically, in the
backpack. Both Tanguay and Westley did not tell the truth about
having their driver’s licenses with them. Tanguay did not tell
the truth about the presence of the BB gun in the Ford. Tanguay
and Westley gave different accounts of where they had been and
who was in possession of the Ford before the encounter.
Tanguay’s backpack was secured with a padlock, and when asked
about it he became nervous and gave an implausible explanation
for why the backpack was locked. See United States v. Goode,
2011 WL 6302553, at *4 (E.D. Pa. Dec. 16, 2011) (defendant’s
nervous behavior and implausible answers to questions
contributed to finding of probable cause to search vehicle for
contraband), aff’d sub nom. United States v. Mebrtatu, 543 F.
App’x 137 (3d Cir. 2013), and aff’d, 550 F. App’x 84 (3rd Cir.
2013).
Based on those facts, Rayho had probable cause to search
the Ford and the backpack for contraband under the automobile
exception. Because Rayho had probable cause to believe that the
34 backpack contained contraband, he was also entitled to remove it
from the Ford and search it within a reasonable time frame.
Given that Rayho searched the backpack within hours of the stop,
the search did occur within a reasonable time. Therefore,
Rayho’s warrantless search of the backpack was permissible under
the automobile exception to the warrant requirement.
The warrantless search of the backpack at the police
station was further justified because Tanguay voluntarily
consented to the search. Although the fact Tanguay was in
custody is not enough by itself to render consent
involuntary, it does raise a “sensitivity to the heightened
possibility of coercion.” United States v. Jones, 523 F.3d
31, 38 (1st Cir. 2008). In addition, the early hour when
Rayho questioned Tanguay is another factor weighing against
voluntariness. United States v. Real Prop. & Premises Known
as 90-23 201st St., Hollis, N.Y., 775 F. Supp. 2d 545, 556
(E.D.N.Y. 2011).
Nevertheless, based on the totality of the circumstances,
the court concludes that Tanguay provided voluntary consent
to search his backpack. Rayho’s testimony of the interview
demonstrates that it was a civil discussion free of any
inherently coercive tactics. Rayho read Tanguay’s Miranda
rights to him, and Tanguay executed a form acknowledging that
35 he understood them. Further, before providing consent,
Tanguay executed a consent to search form, in which he
authorized the Nashua Police Department to search his
backpack and acknowledged that he had been informed of his
“right to refuse to consent” to the search. Rayho also
informed Tanguay that if he chose not to provide consent, he
could still be booked and have his bail set.10 Rayho did not,
contrary to Tanguay’s assertion, imply or state that Tanguay
would not receive bail unless he consented to the search.
Taken together, these facts demonstrate that the interview
was not coercive.
Therefore, the government had the authority to conduct a
warrantless search of the backpack based on Tanguay’s
consent.11
10Although Rayho did tell Tanguay that he believed that he had probable cause to obtain a warrant to search the backpack, that statement cannot be considered misleading, especially given that Tanguay had admitted that the backpack contained illegal items. United States v. Vazquez, 724 F.3d 15, 22 (1st Cir. 2013)(“[T]he law is . . . clear that consent to a search is not invalid merely because it is secured by an officer's accurate assurance that there will soon be a lawful search anyway).
11Because the court concludes that the warrantless search of the backpack was justified under other exceptions, the court need not consider whether the inevitable discovery exception applies here.
36 Conclusion
For the foregoing reasons, Tanguay’s motion to suppress
evidence (doc. no. 13) is denied.
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge
April 27, 2017
cc: Jennifer C. Davis, Esq. Stanley W. Norkunas, Esq. U.S. Probation U.S. Marshal