United States v. Kimball

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1755

UNITED STATES OF AMERICA,

Appellee,

v.

AARON KIMBALL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Breyer, Chief Judge,

Torruella and Stahl, Circuit Judges.

Peter Clifford, by Appointment of the Court, for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, and George T.

Dilworth, Assistant United States Attorney, were on brief for

appellee.

May 23, 1994

TORRUELLA, Circuit Judge. Aaron Kimball was charged in

a single count indictment with burglarizing a United States Post

Office in North Waterboro, Maine, on October 2, 1992, in

violation of 18 U.S.C. 2115 and 2. Kimball moved to suppress

1) physical evidence seized from the car in which he was riding

and 2) all statements made to police by his codefendants on

October 3, 1992, the morning of his arrest. The district court

denied Kimball's motion. Kimball then entered a conditional plea

of guilty to the indictment. Kimball now appeals the district

court's denial of his motion to suppress. We affirm.

I. BACKGROUND

A. Facts

We view the facts in the light most favorable to the

district court's ruling with respect to Kimball's motion to

suppress. See United States v. Maguire, 918 F.2d 254, 257 (1st

Cir. 1990), cert. denied, 499 U.S. 950 (1991).

There were four night-time burglaries of schools and a

church in western York County, Maine in late September 1992. The

York County Sheriff's Department issued a crime bulletin related

to these burglaries and distributed it to deputies in the

Sheriff's department. The names "Huertas" and "Kimball" were

handwritten on the bottom of the bulletin. It was apparently

standard practice of the York County Sheriff's Department to

write the names of suspects on the bottom of crime bulletins. No

evidence was presented, however, as to specifically who wrote the

names on the bottom of the bulletin or why these two men were

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thought to be suspects. The bulletin stated that the same modus

operandi was used in all four burglaries: using a crow bar to pry

doors, latches, and file cabinets open.

Just after midnight on October 3, 1992, Deputy Thomas

Word saw an automobile in the Massabesic High School parking lot.

As the vehicle pulled out of the school parking lot, Deputy Word

recognized the vehicle as belonging to Gregory Huertas. Deputy

Word knew that Huertas had previously been convicted of burglary,

and that Huertas was a suspect in the recent burglaries. Deputy

Word then pulled the vehicle over, and advised the York County

dispatcher that he had stopped a suspicious vehicle that had been

on school property. Deputy Word then approached the vehicle and

saw Huertas in the driver's seat and Kimball in the right front

passenger's seat. A man later identified as Michael Brochu was

sitting between Huertas and Kimball in the front seat. Deputy

Word shined his flashlight into the car, at which point he saw a

crowbar and flashlight on the floor in the back seat.

Deputy Word requested that Huertas show him his

license, Huertas complied, and Deputy Word returned to his car to

run a license check. Before receiving a response from the

dispatcher, Deputy Word went back to Huertas' vehicle and asked

Huertas to step out of the car. Several other officers,

including Deputy Philip Weymouth, arrived at the scene and

informed Deputy Word that Huertas' license to operate an

automobile had been suspended. Huertas was arrested and taken to

the York County Sheriff's office. The deputies then asked

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Kimball and Brochu whether they would also go to the Sheriff's

office, and they agreed to do so.

At the police station, after being given their Miranda

rights, Huertas and Brochu were interviewed separately. They

both admitted that they had burglarized the North Waterboro Post

Office earlier that evening. Kimball did not speak to any of the

officers and did not make a statement.

At the scene of the initial vehicle stop, Deputy

Weymouth arranged to have Huertas' vehicle towed, and conducted

an inventory search of the vehicle before it was towed. Deputy

Weymouth recorded on the inventory form that he found two

crowbars, a flashlight, a hammer, a pair of bolt cutters, and

assorted screwdrivers in the vehicle.

B. Proceedings Below

Kimball filed a motion to suppress the introduction of

evidence of the tools found in Huertas' vehicle and the

statements made by Huertas and Brochu, claiming that the evidence

obtained was the fruit of an unconstitutional stop of the car in

which he was riding. The district court denied the motion,

finding that the circumstances reasonably justified Deputy Word's

initial stop of Huertas' vehicle and the initial detention of the

vehicle's occupants. The court found that the scope of the stop

was limited and reasonably related to the reasons that justified

it. The court also found that the tools were seized as part of a

lawful inventory search of the car.

Kimball now appeals the district court's denial of his

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motion to suppress. Kimball contends that the district court

erroneously concluded that 1) Deputy Word had the requisite

reasonable suspicion necessary to stop Huertas' vehicle; 2) the

stop was reasonable in its duration and scope; and 3) the

physical evidence and incriminating statements were not legally

attributable to an unlawful stop.

II. KIMBALL'S FOURTH AMENDMENT CLAIM

A. Does Kimball Have Standing1 To Challenge the Stop?

As a threshold matter, the Government argues that

Kimball lacks standing to challenge the constitutionality of the

stop of Huertas' vehicle.2 We disagree.

Fourth Amendment rights are personal, and a proponent

of a motion to suppress must prove that the challenged

governmental action infringed upon his own Fourth Amendment

rights. United States v. Soule, 908 F.2d 1032, 1034 (1st Cir.

1990) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978)).

A police officer's act of stopping a vehicle and detaining its

1 We use the term "standing" 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.
"Technically, the concept of 'standing' has not had a place in
Fourth Amendment jurisprudence for more than a decade, since the
Supreme Court in Rakas v. Illinois, 439 U.S. 128 (1978),

indicated that matters of standing in the context of searches and
seizures actually involved substantive Fourth Amendment law."
United States v. S nchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991).

2 The Government challenged Kimball's standing to bring this
motion to suppress in the district court. The district court,
however, elected to consider, and then rejected Kimball's Fourth
Amendment claim on the merits without first determining whether
Kimball in fact had standing.

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occupants constitutes a seizure within the meaning of the Fourth

Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979); see

also Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450

(1990); United States v. Sharpe, 470 U.S. 675, 682 (1985). Such

a stop affects an occupant's interest in freedom from random,

unauthorized, investigatory seizures. Prouse, 440 U.S. at 657.

An occupant's interest in avoiding the substantial anxiety that

such stops may create is also affected. Id.

When a police officer effects an investigatory stop of

a vehicle, all occupants of that vehicle are subjected to a

seizure, as defined by the Fourth Amendment. The fact that a

defendant is a passenger in a vehicle as opposed to the driver is

a distinction of no consequence in this context. The interest in

freedom of movement and the interest in being free from fear and

surprise are personal to all occupants of the vehicle, and an

individual's interest is not diminished simply because he is a

passenger as opposed to the driver when the stop occurred. See

United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989). Both

driver and passenger:

have their travel interrupted by the
sight of a state patrol cruiser or police
car looming large in the rear view
mirror, are detained on the side of the
road, have their identifying documents
inspected by the trooper or policeman,
and may even be asked to leave their
vehicles for the duration of the
questioning . . . .

United States v. Powell, 929 F.2d 1190, 1195 (7th Cir.), cert.

denied, 112 S. Ct. 584 (1991). Moreover, once a car is stopped,

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a passenger may feel no more free to leave the scene than the

driver, without first being allowed to do so by the police

officer. Erwin, 875 F.2d at 270 (citing Berkemer v. McCarty, 468

U.S. 420, 436 (1984)). Rather, the passenger is subjected to the

demands and control of the police officer, just as the driver is.

Because a passenger's own interests are affected when the vehicle

in which he is riding is stopped, he has standing to challenge

the stop of that vehicle. United States v. Roberson, 6 F.3d

1088, 1091 (5th Cir. 1993), cert. denied, 127 L.Ed.2d 574 (1994);

Erwin, 875 F.2d at 270; United States v. Portwood, 857 F.2d 1221,

1222 (8th Cir. 1988), cert. denied, 490 U.S. 1069 (1989); United

States v. Durant, 730 F.2d 1180, 1182 (8th Cir.), cert. denied,

469 U.S. 843 (1984); see also Powell, 929 F.2d at 1194-95.3

Thus, if the initial stop of the vehicle was illegal, evidence

seized by virtue of that stop, such as the tools in this

instance, may be subject to exclusion under the "fruit of the

poisonous tree" doctrine. See, e.g., Wong Sun v. United States,

371 U.S. 471, 484-85 (1963).

B. Was the Stop Constitutionally Valid?

As a preliminary matter, we set forth the applicable

3 The Government's reliance on Rakas v. Illinois, 439 U.S. 128

(1978), in the context of a stop, is misplaced. In Rakas, the

United States Supreme Court held that a mere passenger in an
automobile ordinarily does not have the legitimate expectation of
privacy necessary to challenge the search of that automobile.

Id. at 148-49. The Supreme Court's decision, however, was

limited to the issue of whether the passenger's legitimate
expectation of privacy was invaded by a search of the vehicle,
and not the stop thereof. Id. at 150-51. (Powell, J.,

concurring).

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standard of review. Whether police activity is reasonable in any

particular context depends on the facts which are unique to that

incident. See United States v. Rodr guez-Morales, 929 F.2d 780,

783 (1st Cir. 1991), cert. denied, 112 S. Ct. 868 (1992). The

trial court has a superior sense of what actually transpired

during an incident, by virtue of its ability to see and hear the

witnesses who have first hand knowledge of the events. Id.; see

also United States v. Karas, 950 F.2d 31, 35 (1st Cir. 1991).

Appellate oversight is therefore deferential, and we review "the

district court's findings of fact following a suppression

hearing, including mixed fact/law findings, under the clearly

erroneous test." Rodr guez-Morales, 929 F.2d at 783 (citations

omitted). If the district court applies the wrong legal

standard, however, no deference attaches to such an application.

Id.

Consistent with the Fourth Amendment, law enforcement

agents may stop a moving automobile to investigate their

reasonable suspicion that the vehicle's occupants were, are, or

will be engaged in criminal activity. United States v. Hensley,

469 U.S. 221, 226 (1985); Berkemer v. McCarty, 468 U.S. 420, 439

(1984); Rodr guez-Morales, 929 F.2d at 784.

Although stopping a car and detaining its
occupants constitute a seizure within the
meaning of the Fourth Amendment, the
governmental interest in investigating an
officer's reasonable suspicion, based on

specific and articulable facts, may

outweigh the Fourth Amendment interest of
the driver and passengers in remaining
secure from the intrusion.

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Hensley, 469 U.S. at 226 (emphasis supplied) (citing Prouse, 440

U.S. at 653-55). To evaluate the overall reasonableness of this

type of stop, a "Terry stop", see Terry v. Ohio, 392 U.S. 1

(1968), the reviewing court must perform a two step inquiry:

"the court must first consider whether the officer's action was

justified at its inception; and second, whether the action taken

was reasonably related in scope to the circumstances which

justified the interference in the first place." United States v.

Walker, 924 F.2d 1, 3 (1st Cir. 1991) (citations omitted). It

should be kept in mind that when applying this test and assessing

the reasonableness of the police officer's actions, the court

must consider the totality of the circumstances which confronted

the officer at the time of the stop. Walker, 924 F.2d at 3-4

(citing United States v. Trullo, 809 F.2d 108, 111 (1st Cir.

1987), cert. denied, 482 U.S. 916 (1987)).

To initially justify a "Terry stop," "the police

officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant that intrusion." Terry, 392 U.S. at 21;

Walker, 924 F.2d at 3; Trullo, 809 F.2d at 110-11. In the

present case, we agree with the district court that Deputy Word's

stop of Huertas' vehicle was warranted at its inception. The

record indicates that Deputy Word was able to articulate a number

of factors that made him suspicious of Huertas' vehicle in the

early morning hours of October 3, 1992. First, Deputy Word

observed the vehicle in a school parking lot after midnight, long

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after any school functions had ended. Second, Deputy Word knew

by virtue of the crime bulletin, that a number of schools and a

church in the area had been burglarized during the weeks

immediately preceding the stop. Thus, as the district court

noted, "the presence of a car, in close proximity to a school,

late at night, not in conjunction with any school related

function, was, in light of the officer's knowledge of the recent

local pattern of burglaries at public schools, an additional

suspicious circumstance." United States v. Kimball, 813 F. Supp.

95, 98 (D. Maine 1993).4 A third articulable factor was that

Deputy Word recognized the vehicle as belonging to Huertas, and

he knew that Huertas had a criminal history involving burglaries.

A police officer's knowledge of an individual's prior criminal

activity is material to whether the officer reasonably suspects

that criminal activity has or may be occurring. Cf. United

States v. Taylor, 985 F.2d 3, 6 (1st Cir.), cert. denied, 113 S.

Ct. 2426 (1993) (an affiant's knowledge of the target's criminal

record is material to the probable cause determination to issue a

4 The names of Huertas and Kimball had been handwritten on the
crime bulletin, identifying them as suspects in the burglaries.
Because the Government failed to present any evidence as to who
handwrote the names on the bulletin, or why Huertas and Kimball
were considered suspects, we do not believe that this factor
provides reasonable support for Deputy Word's stop of Huertas'
vehicle. See Hensley, 469 U.S. at 233 ("Assuming the police make

a Terry stop in objective reliance on a flyer or bulletin, we

hold that the evidence uncovered in the course of the stop is
admissible if the police who issued the flyer or bulletin

possessed a reasonable suspicion justifying a stop . . . ").
Deputy Word was justified, however, in relying upon the other
information contained in the crime bulletin, and even without the
identification of Huertas and Kimball as suspects, he was
justified in stopping Huertas' vehicle on October 3, 1992.

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warrant).

Kimball contends that the record demonstrates that

Deputy Word relied solely on the location of Huertas' vehicle to

support his decision to stop Huertas' vehicle, and that this

factor was legally insufficient to justify the stop. As support

for this argument, Kimball relies on Brown v. Texas, 443 U.S.

47, 52 (1979), where the United States Supreme Court stated that

location alone is insufficient to justify a "Terry stop." While

Kimball is correct that location in and of itself is insufficient

to justify a "Terry stop," we have stated that location and the

type of area where the stop is made, is clearly a consideration

that a police officer may use to decide to make a "Terry stop."

Walker, 924 F.2d at 4; Trullo, 809 F.2d at 111. Deputy Word was

therefore reasonably entitled to consider the fact that the

vehicle was located in the school parking lot. Moreover, as we

have already noted, there were other factors which buttressed

Deputy Word's decision to stop Huertas' vehicle.

Therefore, we believe that the district court was

correct in concluding that the factors articulated by Deputy

Word, taken together, demonstrated that when he decided to stop

Huertas' vehicle, he could have reasonably believed that a

burglary was in process or was about to be committed.5

5 Kimball makes much of the fact that Deputy Word stated in one
portion of his testimony that he did not believe that criminal
activity was occurring when he decided to stop Huertas' vehicle,
and based on this testimony, Kimball therefore concludes that
Deputy Word had absolutely no basis to stop Huertas' vehicle.
Kimball assigns too much weight to one portion of Deputy Word's
testimony, and misconstrues the import of Deputy Word's

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We now review whether the action taken by Deputy Word

and the other York County deputies was reasonably related in

scope to the circumstances which justified the stop. Walker, 924

F.2d at 3. The district court concluded that the stop was

reasonably related to the investigation and did not last too long

or create an excessive intrusion into Kimball's privacy

interests. Kimball, 813 F. Supp. at 99. The "Terry stop" lasted

long enough for Deputy Word to establish the identities of the

occupants of the vehicle, to ask the occupants why they had been

on the school grounds, and to run a license check on the driver,

Huertas. Id. Thereafter, upon learning that Huertas' license

had been suspended, the police properly arrested Huertas. Id.

The district court found that the police officers then asked

Kimball and Brochu, in a nonthreatening and noncoercive manner,

if they would agree to come to the station to answer some

questions, and that they voluntarily consented to do so. Id.

The "Terry stop" therefore ended when Kimball and Brochu agreed

to go with the police officers to the station. Id.

Kimball challenges the district court's findings,

arguing that he was effectively seized after Deputy Word stopped

Huertas' vehicle, prior to the officer's request that he go to

the station for further questioning, and that he did not

testimony, on one occasion, in response to repeated questions at
the suppression hearing as to why he stopped Huertas' vehicle.
Kimball ignores substantial other testimony by Deputy Word which
makes it clear that Deputy Word stopped Huertas' vehicle because
he believed it was suspicious, based on the fact that the vehicle
should not have been in the school parking lot at that late hour,
and there had been a recent rash of school burglaries.

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voluntarily consent to go with the officers. Kimball contends

that the "Terry stop" did not end until his arrest several hours

later, and the stop was thus unreasonable in duration.

The question of whether a defendant has consented to

questioning by the police, and whether that consent was given

voluntarily, are questions of fact to be determined from the

totality of all of the circumstances. Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973); United States v. Miller, 589 F.2d

1117, 1130 (1st Cir. 1978), cert. denied, 440 U.S. 958 (1979);

United States v. Analla, 975 F.2d 119, 125 (4th Cir. 1992), cert.

denied, 113 S. Ct. 1853 (1993). The record supports the

conclusion that Kimball voluntarily consented to undergo further

questioning. The testimony of Deputy Weymouth demonstrates that

the deputies asked Kimball several times whether he would come

down to the station and talk with officers, and each time Kimball

expressly agreed to do so. This was not an unusual request by

the officers; rather, it was department policy not to engage in

detailed interviews on the side of the road. See, e.g., Florida

v. Royer, 460 U.S. 491, 504-05 (1983) ("there are undoubtedly

reasons of safety and security that would justify moving a

suspect from one location to another during an investigatory

detention . . . "). There is no evidence that Kimball ever

indicated that he was unwilling to accompany the police officers

to the station. Moreover, there is no evidence that any of the

officers coerced or intimidated Kimball into going with them.

Although Kimball was not expressly told that he was free to leave

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the scene, or free to refuse to undergo further questioning, and

this fact cuts against a finding of voluntariness in the overall

calculus, the Government was not required to demonstrate such

knowledge by Kimball as a prerequisite to establishing voluntary

consent. Schneckloth, 412 U.S. at 249.

The record also indicates that both the officers and

Kimball acted in a manner that was at all times consistent with

Kimball having voluntarily consented to their request. The

officers did not handcuff or physically restrain Kimball. The

officers did not threaten to arrest Kimball. The officers did

not take any identification or personal effects from Kimball.

Additionally, when Kimball was transported to the station, he

rode in the front seat of Deputy Word's patrol car, and

apparently engaged in relaxed conversation that was unrelated to

the case. Once Kimball arrived at the station, the police

officers permitted Kimball to move freely around the station.

As a general matter, we would be cautious in finding

that a defendant voluntarily consented to undergo further

questioning when, after being stopped by one police officer, five

other officers converge on the scene soon thereafter to

investigate. Additionally, Kimball, like any reasonable

defendant, may have been intimidated by the fact that the driver

of the vehicle, Huertas, was then arrested for driving with a

suspended license, and taken to the police station. We believe

that here, however, our general fears are outweighed by the

specifics of the situation, which point to the conclusion that

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Kimball did in fact agree to go to the station. After examining

the record, we are left with the impression that Kimball did

initially consent voluntarily to further questioning. Upon

learning that further questioning at the station produced

incriminating statements from his codefendants, however, Kimball

now wants to challenge the voluntariness of his consent in an

attempt to taint the police officers' conduct in stopping and

questioning all three occupants of the vehicle. The nature of

Kimball's consent obviously does not hinge upon whether his

strategic decision to acquiesce to the police officer's request

was effective.

We do not believe that the district court's finding

that Kimball's consent to further questioning was voluntary, is

clearly erroneous. See, e.g., Karas, 950 F.2d at 35; United

States v. Manchester, 711 F.2d 458, 462 (1st Cir. 1983); Miller,

589 F.2d at 1130. We therefore conclude that the "Terry stop"

was reasonable at its inception and in its duration, given that

the stop ended when Kimball agreed to go to the station, and that

the stop did not in any way violate Kimball's Fourth Amendment

rights.

C. Standing to Challenge the Inventory Search?

While we have found that Kimball does have standing to

challenge the stop and consequently the seizure of the tools as a

fruit of that stop, Kimball could separately challenge the

constitutionality of the inventory search itself, through which

the police officers seized the tools. Standing to challenge a

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search presents issues separate and distinct from standing to

challenge the stop. Erwin, 875 F.2d at 269. Kimball in fact,

does additionally argue that the police officer's decision to

impound Huertas' vehicle, and the ensuing inventory search, was a

mere subterfuge to perform an unconstitutional investigatory

search. We believe that Kimball lacks standing to object to

either the seizure of the car or the subsequent inventory

search.6

In order to embark on a suppression challenge, a

"defendant must show that he had a reasonable expectation of

privacy in the area searched and in relation to the item seized."

United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988)

(citing United States v. Salvucci, 448 U.S. 83, 90-92 (1980));

see also United States v. Mancini, 8 F.3d 104, 107 (1st Cir.

1993). "[T]he defendant must show both a subjective expectation

of privacy and that society accepts that expectation as

objectively reasonable." Mancini, 8 F.3d at 107 (citations

omitted). The burden of proving this expectation lies with the

defendant. Mancini, 8 F.3d at 107.

The record is bereft of evidence that Kimball

maintained a subjective expectation of privacy in the vehicle

apparently owned and operated by Huertas. The record also fails

to disclose any facts which show that Kimball had an objectively

reasonable expectation of privacy in his friend's vehicle. Thus,

6 While the district court concluded that the police officers
lawfully performed the inventory search and seized the tools
found in the vehicle, we do not reach this issue.

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Kimball has failed to proffer any evidence establishing any

privacy expectation in the area searched.

Kimball instead bases his claim for standing solely on

the fact that he claimed a possessory interest in the items

seized during the inventory search. This contention, in itself,

however, is insufficient to confer standing.

Ownership alone is not enough to
establish a reasonable and legitimate
expectation of privacy. Ownership is
relevant to the inquiry . . . but the
total circumstances determine whether the
one challenging the search has a
reasonable and legitimate expectation of
privacy in the locus of the search.

United States v. Dall, 608 F.2d 910, 914 (1st Cir. 1979), cert.

denied, 445 U.S. 918 (1980) (citations omitted); see also

Salvucci, 448 U.S. at 92 ("we must ... 'engage in a conscientious

effort to apply the Fourth Amendment' by asking not merely

whether the defendant had a possessory interest in the items

seized, but whether he had an expectation of privacy in the area

searched.") (quoting Rakas, 439 U.S. at 147-49). Certainly the

fact that Kimball owned the tools was a factor working in his

favor in the standing determination.7 Without any evidence that

Kimball left the tools in a place that could justifiably give

rise to an expectation of privacy, however, he simply has not

7 The tools were apparently in an opened black bag in the back
seat of Huertas' vehicle. While a "bag may be used as a
repository of personal possessions," the mere possibility of such
personal use does not lead us to "the conclusion that such
contents are 'inevitably' associated with an expectation of
privacy." United States v. Goshorn, 628 F.2d 697, 700 (1st Cir.

1980). Kimball failed to introduce any evidence that he had an
expectation of privacy in the bag.

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sustained his burden of demonstrating that his own Fourth

Amendment rights were affected by the inventory search of the

vehicle. See, e.g., Aguirre, 839 F.2d at 857.

D. Statements Made By Huertas and Brochu

As a final matter, Kimball contends that the

confessions made by Brochu and Huertas were "fruit of the

poisonous tree" from the allegedly unconstitutional stop of

Huertas' vehicle, and the statements must therefore be

suppressed. The short answer to this contention is that we have

found nothing unreasonable about the stop of Huertas' vehicle,

and therefore, there is nothing constitutionally infirm with

admitting these statements.

For the foregoing reasons, the decision of the district

court is affirmed.

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