United States v. Trueber

United States Court of Appeals
For the First Circuit

No. 00-1016
00-1710

UNITED STATES,
Appellant,

v.

JOHANNES TRUEBER,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,
Wallace,* Senior Circuit Judge,
and Boudin, Circuit Judge.

Kevin P. McGrath, Assistant U.S. Attorney, with whom
Donald K. Stern, United States Attorney, was on brief, for
appellant.
Dennis J. Kelly, by appointment of the Court, with whom
David M. Losier and Burns & Levison LLP were on brief, for
appellee.

January 30, 2001
* Of the Ninth Circuit, sitting by designation

WALLACE, Circuit Judge. The government appeals from the

district court’s dismissal of the indictment against defendant

Johannes Trueber based upon a violation of Trueber’s Sixth

Amendment right to a speedy trial. The government also appeals

from the district court’s previous decision to suppress

statements made by Trueber during an automobile stop and during

a subsequent search of his hotel room. The district court had

jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction

over these timely filed appeals pursuant to 18 U.S.C. § 3731.

We reverse in part, vacate in part, and remand.

I

We rely on the testimony of United States Customs

Special Agent Pugliesi, which the district court accepted as

true in deciding the suppression motions. On the evening of

March 20, 1999, Gabriel Lemmerer arrived at Boston’s Logan

Airport on a flight from Aruba. United States Customs Special

Agents arrested Lemmerer after a search of his luggage

revealed five kilograms of cocaine. Among the items seized

from Lemmerer were a receipt from a Hampton Inn in North

Andover, Massachusetts, and a note containing Trueber’s name

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and a confirmation number.

Special Agent Lenzie was dispatched to monitor

whether anyone would attempt to contact Lemmerer at the

Hampton Inn. Arriving at the hotel after midnight, Lenzie

learned that several individuals had called requesting to

speak to Lemmerer. The next afternoon Agent Pugliesi, the

lead investigator in the case, met Lenzie at the Hampton Inn.

Lenzie informed Pugliesi that a man called Johannes Trueber

had checked into the hotel after being dropped off by a taxi

or limousine, and that a license plate search linked the

vehicle to a company currently under investigation by United

States Customs for drug trafficking and money laundering.

Further, Lenzie informed Pugliesi that inspectors at Logan

Airport had obtained Trueber’s American Airlines flight

itinerary, which contained a contact telephone number linked

to another company under investigation for drug trafficking

and money laundering. Both companies were owned by the same

person and were located at the same address in Lawrence,

Massachusetts.

While at the Hampton Inn, Pugliesi acquired

additional information linking Trueber to Lemmerer: (1)

Trueber had arrived at Logan Airport the previous day from

Aruba at roughly the same time as Lemmerer (however, they were

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not on the same flight – Trueber stopped in Miami before

flying to Boston); (2) they had traveled together from the

Dominican Republic to Boston in January 1999 and from Boston

to Aruba; (3) they traveled between Aruba and the Boston area

again in late February or early March 1999; and (4) they

stayed in the same hotel room at the Hampton Inn from March 1

to March 7, 1999.

While gathering this information, the agents set up

surveillance from a hotel room across the hall from Trueber’s

room. The agents observed Trueber leave the hotel on three

occasions to use payphones at a nearby convenience store

(Seven Eleven). After observing these trips, Pugliesi,

accompanied by Special Agent Colleen Forgetta, went to the

hotel lobby and asked the desk clerk if he had had any contact

with Trueber in the course of Trueber’s coming and going. The

desk clerk informed them that Trueber had asked him if the

hotel sold telephone calling cards. Informing Trueber that

they were sold out, the clerk directed him to the Seven

Eleven. Pugliesi and Forgetta drove to the Seven Eleven,

confirmed that it sold calling cards, and, on their return,

observed Trueber leave the hotel and walk toward the Seven

Eleven carrying a suitcase. Because Trueber had checked in

with four or five pieces of luggage, Pugliesi suspected that

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Trueber was planning to deliver the suitcase to someone and

that it contained evidence of the drug smuggling conspiracy.

Accordingly, Pugliesi directed Forgetta to contact the

Lawrence Police Department and request that it send a vehicle

to the scene.

Trueber entered the Seven Eleven and waited near the

front door. Approximately ten minutes later, a white Isuzu

pickup truck drove into the Seven Eleven parking lot. Trueber

left the store, placed the suitcase in the outside flatbed of

the truck, and entered the passenger side. As the truck drove

out of the parking lot, a Lawrence police car arrived on the

scene, and Pugliesi directed the police officers to stop the

truck, informing them that it might contain drugs.

The police car drove behind the truck and activated

its lights. The truck pulled over immediately and the police

car parked approximately five feet behind it. Pugliesi and

Forgetta parked behind the police. Pugliesi and the Lawrence

police officers instructed Trueber and the driver to step

outside the truck. When Trueber got out, Pugliesi, who was

positioned on the passenger side, was carrying his revolver at

his side, pointed toward the ground. Lenzie arrived on the

scene as Pugliesi instructed Trueber to step away from the

truck and toward the side of the road. Pugliesi testified

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that he was not aware if Trueber saw his weapon and stated

that “[m]y idea was not to show Trueber that I had a gun. It

was just to have it for safety.” Re-holstering his gun,

Pugliesi asked Trueber to turn around, put his hands behind

his head, and spread his legs. Pugliesi frisked Trueber for

weapons, found none, and removed nothing from Trueber’s

person.

Pugliesi next asked Trueber to put his hands down,

turn around, and face him. Pugliesi identified himself as a

United States Customs official and asked Trueber for

identification. Trueber produced an Austrian passport, which

Lenzie inspected. Pugliesi asked Trueber when he arrived in

the United States and where he was from, and Trueber responded

that he had arrived the previous day, that he lived in the

Dominican Republic, and that he was an Austrian national.

Pugliesi asked him if he had placed anything in the truck.

Trueber identified the suitcase. Pugliesi asked to take a

look at the suitcase, and Trueber consented. Inside, Pugliesi

discovered a green bag and a container of talcum powder.

Inside the green bag was another bag containing hotel soap

bars. There was nothing else inside the suitcase. Pugliesi

testified that, while sounding innocuous, the objects he

located did not obviate his suspicion and, in fact, heightened

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it. First, he had learned from experience that drug smugglers

often used “scented objects such as soaps or talcs ... that

give a fresh smell to conceal any scent of the drugs that

might be detected by dogs.” Further, he observed that the

green bag was the same color and brand as one of Lemmerer’s

pieces of luggage seized the night before at the airport.

Pugliesi questioned Trueber why he was in the

Lawrence area, and Trueber replied that he had traveled from

Aruba to purchase clothing. He inquired as to Trueber’s

relationship with the driver of the truck, and Trueber

responded that he had met the man earlier that day at a

shopping mall and that he was meeting him that evening to give

him his suitcase. Trueber maintained that the driver needed

extra luggage. Pugliesi asked him where he had stayed the

night before, to which Trueber replied that he had stayed at

the driver’s house in Lawrence. Pugliesi thought this

inconsistency strange: how could Trueber have stayed at the

driver’s house the night before when he asserted to have just

met him that day? When asked the name of the driver, Trueber

stated it was Ramirez.

Meanwhile, the Lawrence police officers and Forgetta

were interviewing the driver on the other side of the truck.

The police officers had directed the driver to step out of the

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truck, walk backwards toward them, and either get on his knees

or lie flat on his stomach. Pugliesi did not see either of

the officers display their weapons. The officers then

instructed the driver to stand and place his hands on the hood

of the police car. After some difficulty, the officers

ultimately learned that his name was Ramon Gonzalez and that

he lived in Lawrence with his girlfriend at 46 Crescent

Street. They retrieved from him a room key and a receipt from

the Tage Inn, which had Trueber’s name on it. One of the

officers handed the key and the receipt to Pugliesi and

informed him of the driver’s name. Pugliesi realized that it

was different from the name Trueber had given him.

When asked about the receipt, Trueber admitted that

he had stayed at the Tage Inn the prior evening. When asked

again why he had entered the truck, Trueber repeated that he

had planned to have a beer with the driver and was going to

give him the suitcase because the driver needed extra luggage.

He also stated that he planned on leaving early the next

morning on a flight to the Dominican Republic. Trueber’s

contradictory answers regarding the driver’s name and where he

had stayed the previous night heightened Pugliesi’s suspicion.

The encounter with Trueber began approximately 10

p.m. on a rainy evening and lasted approximately ten to

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fifteen minutes. As the rain grew harder, Pugliesi asked

Trueber if they could go back to his room at the Hampton Inn

to continue their discussion and if he could search his

luggage at the hotel. Trueber consented. Pugliesi and

Trueber began to walk the roughly 200-250 yards to the hotel

with Trueber when Pugliesi suggested that they drive the rest

of the way in Lenzie’s van, which was parked between them and

the hotel. Trueber consented. Both men sat in the back seat,

and Trueber was not handcuffed or physically restrained in any

way.

Once back at the hotel, Trueber led Pugliesi and

Lenzie to his room, opened the door, and freely entered with

the agents. Once inside, the agents asked Trueber to sit

down. Pugliesi and Lenzie briefly searched the room for

weapons and persons. Next, they resumed questioning Trueber

while searching his luggage. Pugliesi again asked Trueber why

he was visiting Lawrence. When Trueber replied that he was

there to buy clothing, Pugliesi asked him if he had any

receipts. Trueber said no. While inspecting the billfold

containing Trueber’s travel information, Pugliesi found an

index card containing typed information, including the address

46 Crescent Street and a woman’s name. Trueber denied knowing

anyone at that address, yet when Pugliesi informed him that it

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was the same address given by the driver of the truck and

asked him to explain how this typed information was in his

papers when he had just met the driver that day, Trueber

admitted that he had met the driver on previous trips to the

United States and that the woman was someone he visited when

in the country.

The agents next asked Trueber if he had any money

with him and Trueber stated that he had traveled to the United

States with $9,000, that he had approximately $6,500

remaining, and that he had spent the difference on clothes.

The search of his luggage revealed several recently purchased

clothing items, but the price tags and other markings on the

clothes indicated that they were purchased outside the United

States. The only items clearly purchased in the United States

were toiletries from a drug store, whose cumulative cost was

far less than the unaccounted-for $3,500. When asked his

profession, Trueber cryptically stated that he loaned people

money.

The agents next inquired as to Trueber’s

relationship with Lemmerer. Trueber informed them that he had

just spent a few weeks with Lemmerer in Aruba at the Lafayette

Hotel, that he and Lemmerer resided in the same town in the

Dominican Republic, and that they were both Austrian. When

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asked had he planned to meet Lemmerer at the Hampton Inn,

Trueber said yes. The agents then informed Trueber that

Lemmerer had been arrested the night before with five

kilograms of cocaine in his luggage, and asked him if he knew

anything about the situation. Expressing surprise, Trueber

asserted that he knew nothing about it and did not know why

Lemmerer was traveling to Lawrence. However, he stated that

he and Lemmerer had planned to fly back to the Dominican

Republic the next day. Pugliesi saw that Trueber’s ticket, as

well as Lemmerer’s, showed a scheduled return flight to the

Dominican Republic on March 30, 1999, nine days later.

When the discussion began, Pugliesi and Lenzie were

the only Customs agents in the room with Trueber.

Approximately ten to fifteen minutes later, Forgetta arrived,

and the three agents alternately went in and out of the room

during the course of the encounter, traveling between

Trueber’s room and the surveillance room across the hall. At

one point, a fourth agent came to the room with the flight

information that had been gathered at Logan Airport, but did

not stay more than a few minutes, and did not cross the

threshold into the room.

During the interview, Pugliesi informed Trueber

“once, possibly twice,” that he was not under arrest. He

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testified that he first advised Trueber that he was not under

arrest when they entered the room. Later, when questioned as

to why he was in the Lawrence area, Trueber queried: “I’m just

here. Is there anything illegal about that, am I under

arrest?” Pugliesi allegedly replied: “No, you’re not under

arrest. We are just questioning you.”

At one point during the interview when Trueber

indicated that he needed to use the bathroom, the agents

conducted a brief weapons check of the bathroom, and then

instructed Trueber to keep the door ajar for safety reasons

while he urinated. At another point in the interview, when

Trueber began to get up from his chair to help the agents

locate something in one of his bags, the agents told him,

“please, we’ll find it,” indicating that they wanted Trueber

to remain seated.

At no point during the interview did Trueber

indicate that he did not wish to answer questions or that he

did not want the agents to search his luggage. He did not ask

the agents to leave the room, and he did not ask to speak with

a lawyer. After approximately one hour and twenty minutes,

the agents placed Trueber under arrest. When informed that he

was under arrest, Trueber replied: “Okay. Well, then I can’t

answer any more questions. I need an attorney.” Pugliesi

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informed Trueber that he would not ask him any more questions

and advised him of his Miranda rights.

Trueber was charged with conspiracy to import

slightly under five kilograms of cocaine into the United

States in violation of 21 U.S.C. § 963. After a probable

cause and detention hearing held on March 31, 1999, a

magistrate judge of the District of Massachusetts ordered

Trueber detained pending trial. He found Trueber to be a

flight risk given that he was an Austrian national who resides

in the Dominican Republic and has no ties to the United

States. On April 28, 1999, Trueber and Lemmerer each were

indicted on one count of conspiracy to import cocaine into the

United States in violation of 21 U.S.C. § 963, one count of

importation of cocaine in violation of 21 U.S.C. § 952(a), and

one count of aiding and abetting in violation of 18 U.S.C. §

2. Trueber was arraigned on May 28. The magistrate judge

ordered the period between April 28 and May 27 excluded from

the Speedy Trial Act (STA), 18 U.S.C. § 3161, calculation on

the ground that the delay was necessary so that the court

“could obtain the services of a qualified German interpreter

who was not available until May 28, for arraignment.”

On July 12, the district court conducted an initial

status conference in the case and set a trial date of

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September 30. On August 9, Trueber filed a motion to suppress

statements and physical evidence, and on September 17, the

district court rescheduled the trial to October 25. The

hearing on the suppression motion began on September 24 and

continued on October 15, when the district court orally

granted Trueber’s motion to suppress statements and sua sponte

severed the trial of Trueber and Lemmerer based upon perceived

Bruton concerns. Jury selection for Lemmerer’s trial began on

October 18. The district court resumed Trueber’s suppression

hearing on October 26 and denied the motion to suppress

physical evidence that same day. The court scheduled

Trueber’s trial to commence as soon as Lemmerer’s ended.

On November 12, the government timely filed a notice

of appeal from the district court’s order suppressing

Trueber’s statements. As of that date, only sixteen days had

expired on the STA clock since Trueber’s arrest on March 21.

On December 2, Trueber filed a motion to be released pending

the appeal and, during a December 16 hearing on the motion, he

moved orally to dismiss the indictment for lack of a speedy

trial. The district court denied the motion without

prejudice. However, at a January 28, 2000, bail hearing, the

district court stated that it would accept briefs on the

subject, and in a February 8 order for further briefing, the

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district court “reported to the parties . . . that the

assembly of the . . . record in this appeal – conduct that

ought routinely to take about seven days – here took at least

55 days, from November 12, 1999 to January 6, 2000, when a

clerk in the Court of Appeals indicated that it had some of

the papers.” Consequently, the court “invited [the parties]

to brief the issue whether the failure timely to process this

appeal – a failure that kept Mr. Trueber in custody

approximately 48 days for no reason – warrants any relief,

and, if so, what that relief ought to be.”

On February 22, 2000, Trueber filed a motion seeking

dismissal of the indictment, asserting that his Sixth

Amendment right to a speedy trial had been violated. The

district court denied the motion on February 24 on the ground

that the court lacked subject matter jurisdiction to determine

the issue because of the pending appeal before this court.

However, the court advised Trueber to petition this court

either for an expedited hearing on the government’s appeal or

for a remand to the district court to consider the motion.

On March 9, Trueber filed a motion in this court to

remand for a ruling on his motion to dismiss for lack of a

speedy trial. In an order dated March 15, we stated that we

retained jurisdiction, but we authorized the district court to

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act on Trueber’s motion to dismiss the indictment. On May 19,

the district court dismissed the indictment with prejudice on

the ground that Trueber’s constitutional right to a speedy

trial had been violated.

II

First, the government contends that the district

court erred in dismissing the indictment against Trueber. The

government argues that the district court improperly based its

dismissal on post-accusation delays attributable to the

government’s interlocutory appeal from the district court’s

order to suppress statements. We review a district court’s

ruling on a Sixth Amendment speedy trial claim for abuse of

discretion. United States v. Salimonu, 182 F.3d 63, 69 (1st

Cir. 1999).

In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme

Court established a four-part balancing test a court should

consider to determine whether a defendant’s Sixth Amendment

right to a speedy trial has been violated: “(1) the length of

the delay; (2) the reasons for the delay; (3) the defendant’s

assertion of his speedy trial right; and (4) the prejudice to

the defendant caused by the delay.” United States v. Munoz-

Amado, 182 F.3d 57, 61 (1st Cir. 1999); see also Barker, 407

U.S. at 530. None of the four factors is “either a necessary

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or sufficient condition to the finding of a deprivation of the

right of speedy trial. Rather, they are related factors and

must be considered together with such other circumstances as

may be relevant.” Munoz-Amado, 182 F.3d at 61, quoting United

States v. Henson, 945 F.2d 430, 437 (1st Cir. 1991).

A.

The first factor “is actually a double inquiry.”

United States v. Doggett, 505 U.S. 647, 651 (1992).

Initially, simply to trigger speedy trial analysis, the

defendant must allege that the delay has “crossed the

threshold dividing ordinary from ‘presumptively prejudicial’

delay, since, by definition, he cannot complain that the

government has denied him a ‘speedy’ trial if it has, in fact,

prosecuted his case with customary promptness.” Id. at 651-

52, quoting Barker, 407 U.S. at 530-31. If the defendant

makes this showing, “the court must then consider, as one

factor among several, the extent to which the delay stretches

beyond the bare minimum needed to trigger judicial examination

of the claim.” Id. at 652.

Because of “the imprecision of the right to speedy

trial,” the length of delay sufficient to trigger the analysis

“is necessarily dependent upon the peculiar circumstances of

the case.” Barker, 407 U.S. at 530-31. In Doggett, the

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Supreme Court observed, however, that, “[d]epending on the

nature of the charges, the lower courts have generally found

post accusation delay ‘presumptively prejudicial’ at least as

it approaches one year.” 505 U.S. at 652 n.1.

The speedy trial right attaches upon arrest or

indictment, whichever occurs first. Munoz-Amado, 182 F.3d at

61. For Trueber, it attaches on March 21, 1999, when he was

arrested. He was ordered detained pending trial on March 31,

1999, and has remained in custody ever since. Accordingly,

Trueber’s period of post-accusation delay and incarceration

now approaches twenty-two months (of course, it was somewhat

less when the district court ruled, and even less than that

when Trueber filed his dismissal motion). We shall assume

that this delay is “presumptively prejudicial” so as to

trigger further inquiry. See, e.g., id. (assuming that a

nineteen-month delay was presumptively prejudicial); United

States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir. 1997)

(assuming that a fifteen-month delay was presumptively

prejudicial); United States v. Colombo, 852 F.2d 19, 24 (1st

Cir. 1988) (holding that a twenty-four-month delay was long

enough to be presumptively prejudicial).

In determining the weight we should give this delay

in the Barker analysis, we examine the extent to which the

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delay exceeds the bare minimum considered presumptively

prejudicial. See Doggett, 505 U.S. at 652; Barker, 407 U.S.

at 530-31. Trueber has waited over twenty-two months for the

commencement of trial in this case, “a case more complicated

than 'an ordinary street crime' but less so than 'a serious,

complex conspiracy charge.'” Munoz-Amado, 182 F.3d at 62,

quoting Barker, 407 U.S. at 531. Arguably, therefore, the

period of the delay is long enough “to tip the scales slightly

in favor of [Trueber’s] claim.” Id. (nineteen-month delay in

cocaine importation conspiracy enough to tip balance in favor

of defendant).

B.

The second factor, the reasons for the delay, has

been described as “[t]he flag all litigants seek to capture,”

United States v. Loud Hawk, 474 U.S. 302, 315 (1986), and is

often considered the “focal inquiry.” Munoz-Amado, 182 F.3d

at 62 (internal quotation and citation omitted). In Barker,

the Supreme Court held that “different weights should be

assigned to different reasons.” Barker, 407 U.S. at 531.

While a “deliberate attempt to delay the trial in order to

hamper the defense” would be weighed heavily against the

government, “a more neutral reason such as negligence or

overcrowded courts” would be weighed “less heavily.” Id.

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 In its dismissal of the indictment, the district

court asserted three reasons for the delay, each attributable

to the government’s interlocutory appeal. First, the district

court found that fifty-five days elapsed between the date the

government filed its notice of appeal and the date the

district court clerk’s office delivered the record to this

court. The district court concluded that this was far longer

than it should have taken, stating that “forty-eight days of

time was just dead time because this Court failed properly to

pay sufficient attention to Mr. Trueber’s case to get it over

to the Court of Appeals.” Moreover, regarding the strength of

the government’s appeal, the district court added, “[T]hat’s

what makes this so, candidly, so absolutely difficult . . .

.Because I think that I’m absolutely right on the motion to

suppress . . . . If I were the only court to hear this, I

would think there is very little to this case.”

While delays in bringing the case to trial caused by

the government’s interlocutory appeal may be weighed in

determining whether a defendant has suffered a violation of

his rights to a speedy trial, “[g]iven the important public

interests in appellate review . . . it hardly need be said

that an interlocutory appeal by the Government ordinarily is a

valid reason that justifies delay.” Loud Hawk, 474 U.S. at

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315. In Loud Hawk, the Supreme Court identified the factors

courts may consider in assessing the purpose and

reasonableness of an interlocutory appeal: (1) the strength of

the government’s position on the appealed issue; (2) the

importance of the issue in the posture of the case; and (3) in

some cases, the seriousness of the crime. Id. In this case,

as explained later, contrary to the district court’s

assertion, the government’s position on the suppression of

Trueber’s statements is strong. Second, the exculpatory

statements made by Trueber are germane to the government’s

case and are not “clearly tangential and frivolous.” Id. at

316. Third, this case involves the importation of nearly five

kilograms of cocaine into the United States, which is a

serious crime. Moreover, “there is no showing of bad faith or

dilatory purpose on the part of the government.” Id. Indeed,

in dismissing the indictment, the district court expressly

stated that it did not “fault [the government] for invoking

their procedural remedies [to seek an] interlocutory appeal on

the motion to suppress . . . .” Finding no misconduct on the

part of the government, the district court observed: “[w]hen

called upon to take a position they have taken the position .

. . promptly and adequately.”

Neither Trueber nor the district court point to any

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authority to support weighing in Trueber’s favor a delay in

assembling the record for a reasonable and legitimate

interlocutory appeal. There is no showing of “bad faith” or

“dilatory purpose” on the part of the government; in fact, the

delay is not attributable to any conduct or omission on the

part of the government. On the contrary, this delay is

attributable to the district court clerk’s office. Further,

there is no showing that a fifty-five day period between

filing a notice of appeal and assembling the record for appeal

is a reason for delay deserving weight under Barker. In fact,

in its order for further briefing on February 8, 2000, the

district court observed that thirty-six percent of criminal

appeals “taken from this district over the last sixth months

of 1999 took forty days or longer to process.” While this

“neutral” reason for delay “nevertheless should be considered”

under Barker, 407 U.S. at 531, it does not deserve “any

effective weight.” Loud Hawk, 474 U.S. at 316.

The second reason for delay identified by the

district court was a period of twenty-one days, which it

attributed to itself, stating that it “[bore] some direct

responsibility” for not holding a more timely hearing on

Trueber’s speedy trial motion. While the government’s appeal

was pending, we issued an order on March 15, 2000, authorizing

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the district court to act on Trueber’s motion to dismiss for

lack of speedy trial. The district court did not hold a

hearing on the motion until May 19. The district court judge

explained that the hearing was not held sooner because he was

on vacation for two weeks, and the district court caused an

additional seven days of delay by “just shuffling” before

directing the district court clerk to call the case for a

hearing on the motion. Again, no authority supports granting

this relatively short and “neutral” period of delay,

attributable to the district court, any effective weight

towards Trueber’s speedy trial claim.

Third, the district court scolded the government for

what it perceived to be the government’s contribution to

Trueber’s post-accusation delay. The court stated that when a

defendant has been in custody “approaching a year, and

certainly after a year,” the government has a responsibility

“to be a very squeaky wheel . . . .” As the court explained,

“I expect calls, I expect letters. I expect it to be thrust

upon me . . . . So there’s fault there [on the part of the

United States Attorney].” However, as explained earlier, the

district court did not impugn the motives of the government,

stating that “there is . . . certainly not misconduct [on the

part of] the government . . . .” and “[w]hen called upon to

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take a position they have taken the position . . . promptly

and adequately.” With no showing of “bad faith” or “dilatory

purpose,” id., we conclude there should be no weighing against

the government for this amorphous period of delay while the

government’s interlocutory appeal was pending before this

court.

Under the Barker test, “delays in bringing the case

to trial caused by the Government’s interlocutory appeal may

be weighed in determining whether a defendant has suffered a

violation of his rights to a speedy trial.” Id. However,

“respondents have failed to show a reason for according these

delays any effective weight towards their speedy trial

claims.” Id. We conclude that the reasons identified by the

district court for the asserted delays do not justify the

“unsatisfactorily severe remedy of dismissal.” Barker, 407

U.S. at 522.

C.

The third factor – the extent to which the defendant

has asserted his speedy trial right – “is entitled to strong

evidentiary weight in determining whether the defendant is

being deprived of the right.” Id. at 531-32. “A defendant

should give some indication, prior to his assertion of a

speedy trial violation, that he wishes to proceed to trial.”

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Munoz-Amado, 182 F.3d at 62.

In this case, no action was taken by Trueber between

March 21, 1999, and December 16, 1999, that could be construed

as the assertion of the speedy trial right or an indication

that Trueber wished to proceed to trial. On the latter date,

during a hearing on his motion to be released pending the

government’s interlocutory appeal, Trueber moved orally to

dismiss the indictment for lack of a speedy trial. Thus, for

nearly nine months following his arrest Trueber did nothing to

expedite his trial, and did not raise the issue until one

month after the case was on appeal to this court. Further,

after filing his motion seeking dismissal of the indictment on

speedy trial grounds on February 22, 2000, Trueber

demonstrated a “lack of enthusiasm for the speedy trial right

which he now asserts.” United States v. Henson, 945 F.2d 430,

438 (1st Cir. 1991) (internal quotations omitted). On

February 24, 2000, when the district court dismissed Trueber’s

motion for lack of jurisdiction, it advised Trueber either to

petition this court for an expedited hearing on the

government’s appeal or for a remand to the district court to

consider the motion. Trueber chose the latter. Thus, there

is merit to the government’s assertion that “Trueber only

became interested in invoking the Sixth Amendment when it

-25-
became an avenue to dismiss the indictment or obtain release.”

The record strongly suggests that Trueber did not seek a trial

and, instead, “hoped to take advantage of the delay in which

he had acquiesced, and thereby obtain a dismissal of the

charges.” Barker, 407 U.S. at 535.

We have found no law, nor has any been cited to us,

to support the district court’s position that “a defendant

asserts his speedy trial right by pleading not guilty.”

Further, there is no authority supporting the district court’s

decision to “count, if you will, that Mr. Trueber has asserted

his speedy trial rights at every stage in this proceeding, and

I do not count against him in any wise [sic] that he has not

formally filed a paper until this motion to dismiss was filed

[on February 22, 2000 – 11 months after his arrest].”

D.

The fourth factor – the prejudice to the defendant

caused by the delay – “should be assessed in the light of the

interests of defendants which the speedy trial right was

designed to protect.” Barker, 407 U.S. at 532. The Supreme

Court “has identified three such interests: (i) to prevent

oppressive pretrial incarceration; (ii) to minimize anxiety

and concern of the accused; and (iii) to limit the possibility

that the defense will be impaired.” Id. Of these, “the most

-26-
serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the

entire system.” Id.

But the district court saw a prejudice by the

alleged delay in this case in a different manner, and the

question is whether, under Barker, this "prejudice" implicates

interests the speedy trial right was designed to protect. The

district court reasoned:

I think presumptively and practically
[Trueber] is prejudiced. He’s prejudiced
in the most practical of senses. The
government went to trial first against his
co-defendant, Mr. Lemmerer. It resulted in
a hung jury . . . . The government[’s]
evidence at the second trial was more
compendious.

Now, Mr. Lemmerer has been convicted .
. . . Every day Mr. Trueber waits for his
trial bolsters the government’s chances as
opposed to that of Mr. [Trueber].

We have found no authority to support this notion of

prejudice, and it appears to us to be too speculative.

Indeed, Trueber acknowledges in his brief to this court that

“it is difficult to speculate about the extent to which the

pre-trial delay and incarceration will prejudice or impair

Trueber’s defense other than to say that the government has

already used the delay to attempt to gather evidence . . . to

. . . supplement . . . [its] case . . . .” Trueber does not

-27-
point to a single authority to support the novel proposition

that the potential strength the government’s case may acquire

over time amounts to prejudice against the defendant. Indeed,

“delay is a two-edged sword,” Loud Hawk, 474 U.S. at 315, and

“is not an uncommon defense tactic,” Barker, 407 U.S. at 521,

as “[t]he passage of time may make it difficult or impossible

for the government to carry [its] burden.” Loud Hawk, 474

U.S. at 315.

The mere possibility that the government’s case may

get stronger with time is not sufficient to support Trueber’s

position that his speedy trial right was violated. Cf. id.

(the possibility of impairment of a fair trial that may result

from the absence or loss of memory of witnesses is not

sufficient to support respondent’s position that their speedy

trial rights were violated). Trueber has not provided any

support, in the record or otherwise, for his allegation that

his defense has been impaired by the delay. “There is no

indication here that the period of pretrial delay interfered

in any way with [Trueber’s] ability to present evidence or

obtain the testimony of witnesses, or that it would have any

impact on the fairness of his trial.” Munoz-Amado, 182 F.3d

at 63.

We conclude, therefore, after applying the Barker

-28-
balancing test and weighing its several factors, that

Trueber’s constitutional right to a speedy trial was not

violated and, therefore, that the district court abused its

discretion. Accordingly, we reverse the district court’s

dismissal of the indictment against Trueber.

III

We now turn to the government’s appeal from the

district court’s suppression of all statements made by Trueber

on the night of March 21, 1999. The first challenge deals

with those statements made when the truck was stopped; the

second involves statements made in the hotel room.

A.

First, the government contends that the district

court erred in suppressing Trueber’s roadside statements made

to Special Agent Pugliesi prior to receiving Miranda warnings.

The district court concluded that, for purposes of Miranda,

Trueber was in custody when questioned and, therefore, all

statements violated Miranda and should be suppressed. The

government argues that the initial stop of the vehicle was a

valid Terry stop that did not develop into custodial

interrogation necessitating the administration of Miranda

warnings.

In the context of a motion to suppress, we review a

-29-
district court's factual findings for clear error. See United

States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999). We review

a district court's legal conclusions de novo. Id.

“Miranda warnings must be given before a suspect is

subjected to custodial interrogation.” United States v.

Ventura, 85 F.3d 708, 710 (1st Cir. 1996). The custody

determination is the initial and central inquiry as it is

“‘the touchstone to the need for Miranda warnings.’” Id.,

quoting United States v. Quinn, 815 F.2d 153, 160 (1st Cir.

1987). The issue before us is whether Trueber was in custody

when questioned by Pugliesi after the police stopped the truck

in which he was riding.

The government argues that what occurred when police

officers stopped the truck in which Trueber was riding was a

valid Terry stop. In Terry v. Ohio, the Supreme Court first

recognized “that a police officer may in appropriate

circumstances and in an appropriate manner approach a person

for purposes of investigating possibly criminal behavior even

though there is no probable cause to make an arrest.” 392

U.S. 1, 22 (1968). This authority permits officers to “stop

and briefly detain a person for investigative purposes,”

United States v. Sokolow, 490 U.S. 1, 7 (1989), and

“diligently pursue[] a means of investigation . . . likely to

-30-
confirm or dispel their suspicions quickly.” United States v.

Sharpe, 470 U.S. 675, 686 (1985).

“As a general rule, Terry stops do not implicate the

requirements of Miranda because ‘Terry stops, though

inherently somewhat coercive, do not usually involve the type

of police dominated or compelling atmosphere which

necessitates Miranda warnings.’” United States v. Streifel,

781 F.2d 953, 958 (1st Cir. 1986), quoting United States v.

Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982). In Berkemer v.

McCarty, the Supreme Court held that routine traffic stops are

more analogous to a Terry stop than to a formal arrest and,

therefore, are not custodial for purposes of Miranda. 468

U.S. 420, 440 (1984) (“The comparatively nonthreatening

character of detentions of this sort explains the absence of

any suggestion in our opinions that Terry stops are subject to

the dictates of Miranda.”).

In evaluating the reasonableness of the

investigatory Terry stop in the instant case, we first

determine “‘whether the officer[’s] actions were justified at

[their] inception,’ and if so, ‘whether the actions undertaken

by the officer[s] following the stop were reasonably

responsive to the circumstances justifying the stop in the

first place as augmented by information gleaned by the

-31-
officer[s] during the stop.” Owens, 167 F.3d at 748

(alterations in original), quoting United States v. Sowers,

136 F.3d 24, 27 (1st Cir. 1998); see also Terry, 392 U.S. at

20.

There is no dispute about the propriety of the

initial stop of the truck. The district court correctly

stated that the agents “[had] every right to stop [the

truck].” However, the district court added: “In fact,

[because] I’m positive they may have every right to arrest

him, he ought to have gotten his Miranda warnings right then.”

Further, the district court conjectured that, from the

inception of the stop, the agents were not going to “let

[Trueber] go anywhere.”

Evidently, the district court took the view that

because the agents were entitled to arrest Trueber and, thus,

necessarily intended to arrest him, what occurred when the

officers stopped the truck was not a valid Terry stop, but a

de facto arrest, requiring Miranda warnings from the outset.

This reasoning improperly conflates the two areas of the

inquiry and is based upon a false premise. The subjective

intent of the agents is not relevant to either part of the

inquiry: it does not impact the validity of the initial

investigative stop, and it has no bearing on determining

-32-
whether police conduct transformed an investigative stop into

a de facto arrest. See Berkemer, 468 U.S. at 442 ("A

policeman’s unarticulated plan has no bearing on the question

whether a suspect was ‘in custody’ at a particular time.");

Streifel, 781 F.2d at 959 (officers’ intentions relevant only

to the extent that they were communicated to the defendants).

Because there is no dispute that the agents had at least an

articulable and reasonable suspicion that Trueber was engaged

in criminal activity, effecting a limited investigative Terry

stop was justified. See United States v. Sharpe, 470 U.S. at

682. Thus, without administering Miranda warnings, the agents

were entitled to stop the truck, detain its occupants, and

pursue a means of investigation that was likely to confirm or

dispel their suspicions quickly. See id. at 686.

Determining that an investigative Terry stop was

justified at its inception is only the first step, however.

“‘The manner in which the seizure and search were conducted

is, of course, as vital a part of the inquiry as whether they

were warranted at all.’” Streifel, 781 F.2d at 958 (internal

citations omitted). The central issue in this case is whether

an otherwise valid Terry stop escalated into a de facto arrest

necessitating the administration of Miranda warnings. As the

Supreme Court stated in Berkemer, the target of a Terry stop

-33-
must be advised of his Miranda rights if and when he is

“subjected to restraints comparable to those associated with a

formal arrest.” 468 U.S. at 441.

“There is no scientifically precise formula that

enables courts to distinguish between investigatory stops . .

. and . . . 'de facto arrests'.” United States v. Zapata, 18

F.3d 971, 975 (1st Cir. 1994). The “ultimate inquiry,”

however, is whether there was “a formal arrest or restraint on

freedom of movement of the degree associated with a formal

arrest.” Thompson v. Keohane, 516 U.S. 99, 112 (1995)

(internal quotations and citations omitted). In assessing

whether there was a “restraint on freedom of movement,” “a

court must examine all the circumstances surrounding the

interrogation.” Ventura, 85 F.3d at 711 (internal quotations

and citation omitted). This is an objective test: “the only

relevant inquiry is ‘how a reasonable man in the suspect’s

shoes would have understood his situation.’ The subjective

beliefs held by the interrogating officer or the person being

interrogated are not germane.” Id., quoting Stansbury v.

California, 511 U.S. 318, 324 (1994). Thus, to the extent

that the district court based its conclusion that Trueber was

in custody on the presumed and uncommunicated intent of the

agents to prevent Trueber from leaving the scene, it was in

-34-
error. See Streifel, 781 F.2d at 959.

Relevant circumstances include, among other

inquiries, “whether the suspect was questioned in familiar or

at least neutral surroundings, the number of law enforcement

officers present at the scene, the degree of physical

restraint placed upon the suspect, and the duration and

character of the interrogation.” Ventura, 85 F.3d at 711

(internal quotation and citation omitted); see also Streifel,

781 F.2d at 961 n. 13.

Determining what constitutes custody thus requires

"[t]wo discrete inquiries." Keohane, 516 U.S. at 112. First,

a court must determine what were the circumstances surrounding

the exchange between the government agent and the suspect.

This inquiry is distinctly factual. Keohane, 516 U.S. at 112.

Second, given those circumstances, a court must determine:

whether and when a reasonable person in
[Trueber’s] position would have believed
that he was actually in police custody and
being constrained to a degree associated
with formal arrest (rather than simply
undergoing a brief period of detention at
the scene while the police sought by means
of a moderate number of questions to
determine his identity and to obtain
information confirming or dispelling their
suspicions).

Streifel, 781 F.2d at 962. This ultimate determination turns

on an assessment of the aforementioned factors, id. at 961,

-35-
and “qualif[ies] for independent review” as it is it presents

a “mixed question of law and fact.” Keohane, 516 U.S. at 113.

In the instant case, the district court’s custody

determination was cursory, providing no indication that the

court properly applied the correct legal test or recognized

that whether and when the stop at issue became custodial turns

on the relevant factors mentioned earlier. The district court

evidently believed that the circumstances surrounding the

detention of Trueber were tantamount to those of a formal

arrest from the moment Pugliesi patted down Trueber after

stopping the truck and asking the driver and Trueber to step

out of the vehicle. This was error. Nothing in the initial

stop and detention exceeded the bounds of an ordinary,

permissible Terry stop. See United States v. Taylor, 162 F.3d

12, 22 (1st Cir. 1998); Zapata, 18 F.3d at 975.

The one arguably coercive fact – that Pugliesi had

his gun drawn and at his side when he asked Trueber to step

out of the vehicle – is not sufficient, under the

circumstances, to convert the investigatory stop into a de

facto arrest. See Taylor, 162 F.3d at 21 (holding that a

valid Terry stop did not mature into a de facto arrest when

police cruisers stopped a car, blocked it, and two officers

drew their weapons when approaching the car); United States v.

-36-
Trullo, 809 F.2d 108, 113 (1st Cir. 1987) (holding that police

officer’s use of drawn weapon did not convert investigative

stop into arrest). Pugliesi’s drawing of his gun was

reasonably related in scope to the circumstances which

justified stopping the truck in the first place. The agents

suspected Trueber of dealing in narcotics, “a pattern of

criminal conduct rife with deadly weapons,” id.; the agents’

reasonable suspicion justified the stop; the stop occurred at

night; Pugliesi testified that he only drew his gun out of

concern for his own safety, that he kept it at his side,

pointed at the ground, and that he quickly re-holstered it;

and there is no evidence in the record that Trueber saw the

briefly drawn gun. Such minimal use of a gun, under the

circumstances, does not exceed the bounds of a permissible

Terry stop.

At this point in the encounter – following the

initial stop of the truck and brief pat-down – a reasonable

person would have believed only that he was being detained for

investigation, not placed under arrest. See Taylor, 162 F.3d

at 22. Moreover, at no time during the exchange that followed

between Pugliesi and Trueber was Trueber subject to a

“restraint on freedom of movement of the degree associated

with a formal arrest.” Keohane, 516 U.S. at 112 (internal

-37-
quotations and citation omitted). First, the encounter

occurred in neutral surroundings – on a public street.

Second, while five government agents were present at the

scene, no more than two were in direct proximity to Trueber,

each in plain clothes, and only one questioned him. Further,

“[m]ere numbers do not automatically convert a lawful Terry

stop into something more forbidding.” Zapata, 18 F.3d at 976.

Third, the officers made no threats, brandished no weapons

(other than the brief use by Pugliesi), and exerted no

physical restraint upon Trueber’s person beyond the limited

pat-down Pugliesi conducted immediately after Trueber stepped

out of the car. Finally, the encounter lasted no more than

fifteen minutes, the agents conducted an investigation that

was “likely to confirm or dispel their suspicions quickly,”

and their approach was measured and their conduct not

bellicose. Sharpe, 470 U.S. at 686 (holding that twenty-

minute investigatory detention was reasonable where police

“diligently pursued a means of investigation that was likely

to confirm or dispel their suspicions quickly”); Owens, 167

F.3d at 749 (holding that fifty-minute detention not a de

facto arrest when, under the circumstances, officers

diligently pursued a means of investigation that would dispel

their suspicions). Pugliesi’s questioning was brief and to

-38-
the point – his questions were targeted at ascertaining

Trueber’s identity, his reasons for being in the country, and

whether he was involved in the suspected illegal activity –

and his search of Trueber’s suitcase was by consent. Further,

“information gleaned by [Pugliesi] during the stop,” id. at

748, including Trueber’s inconsistent answers and the

suspicious contents of the suitcase, warranted a thorough,

rather than cursory, investigation. See Quinn, 815 F.2d at

158 (stating that it would have been unreasonable for officers

with very strong grounds for suspicion – approaching probable

cause – to have sent suspects on their way after a few

perfunctory questions, especially since divergent answers

raised the level of suspicion, inviting further inquiry).

Based on the facts accepted by the district court,

which are not clearly erroneous, we do not accept Trueber’s

allegations that the police cruiser blocked the truck after

stopping it, that the police officers physically removed the

driver from the truck, that Customs agents and police officers

surrounded Trueber “with guns displayed,” and that Pugliesi

searched Trueber’s suitcase without consent. While Pugliesi

did testify that the police officers briefly placed the driver

“either on his knees or flat on his belly” after instructing

him to step out of the car, this fact is not relevant to the

-39-
inquiry whether a reasonable person in Trueber’s position

would have believed that he was “actually in police custody

and being constrained to a degree associated with formal

arrest.” Streifel, 781 F.2d at 962.

Therefore, we hold that the course of action pursued

by Pugliesi and the other agents and police officers during

the investigatory stop was “justified at its inception,” and

“reasonably related in scope to the circumstances which

justified the interference in the first place.” Sharpe, 470

U.S. at 682 (internal quotation and citation omitted). What

occurred was thus a permissible Terry stop. The situation was

not such that a reasonable person would have thought he was

under arrest, rather than “simply undergoing a brief period of

detention at the scene while the police sought by means of a

moderate number of questions to determine his identity and to

obtain information confirming or dispelling their suspicions.”

Streifel, 781 F.2d at 962. Nothing the agents did or said

sufficed to convert the investigatory stop into an arrest

requiring the administration of Miranda warnings. Therefore,

we reverse the district court’s suppression of all statements

made by Trueber during the course of the valid investigatory

Terry stop of the truck.

B.

-40-
 Next, the government contends that the district

court erred in suppressing statements made by Trueber in his

hotel room subsequent to the roadside encounter. The district

court concluded that the hotel room search and interrogation

were non-consensual and that Trueber was in custody once the

agents entered the room and told Trueber to sit down. The

government argues that Trueber voluntarily consented to allow

the agents into his room to search his luggage and resume

questioning after the roadside encounter.

Because the district court determined that Trueber

was in custody when he agreed to accompany the agents back to

his hotel room, it treated the issue of consent in a per se

manner: any consent on Trueber’s part necessarily was

involuntary because he was in custody. This per se rule is

invalid. While “sensitivity to the heightened possibility of

coercion is appropriate when a defendant’s consent is obtained

during custody, custody alone has never been enough in itself

to demonstrate . . . coerced . . . consent to search.” United

States v. Collazo-Aponte, 216 F.3d 163, 187 (1st Cir. 2000)

(internal quotations and citations omitted) (omissions in

original). But more important, for the reasons stated

earlier, Trueber was not in custody when he gave his consent.

The question of voluntariness is a question of fact

-41-
determined by the totality of the circumstances. Id.

"Voluntariness turns on a number of factors, including the

person’s ‘age, education, experience, intelligence, and

knowledge of the right to withhold consent.’" United States

v. Coraine, 198 F.3d 306, 309 (1st Cir. 1999), quoting United

States v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993).

Due to its erroneous initial custody determination

based upon the facts accepted, the district court did not

fully address the issue of consent. It now must do so,

bearing in mind our determination that Trueber was not in

custody at the time Pugliesi requested to search his hotel

room and interrogate him further.

Moreover, after determining the issue of consent,

the district court must apply the proper legal test discussed

earlier and reevaluate whether and when the hotel room

encounter was custodial for purposes of Miranda. In sum, the

central custody inquiry is whether there was a “restraint on

freedom of movement of the degree associated with a formal

arrest,” Keohane, 516 U.S. at 112 (internal quotation and

citation omitted), and the ultimate determination turns on an

examination of the same factors mentioned earlier.

We vacate the district court's suppression of the

statements made in the hotel room and remand to the district

-42-
court for determination of the issue of consent to search the

hotel room and for application of the correct legal test for

determining custody while in the hotel room. On remand, the

district court may take additional evidence on the relevant

factual issues.

Reversed in part, vacated in part, and remanded.

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