United States Court of Appeals
For the First Circuit
No. 17-1261
UNITED STATES OF AMERICA,
Appellee,
v.
DERRICK FAVREAU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Jamesa J. Drake and Drake Law, LLC for appellant.
Renée M. Bunker, Assistant United States Attorney,
Appellate Chief, with whom Halsey B. Frank, United States
Attorney, was on brief, for appellee.
March 23, 2018
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The defendant, Derrick
Favreau, pleaded guilty to a serious drug offense, violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C), but he reserved his right
to appeal the district court's denial of his motion to suppress
the drug evidence as having resulted from a search unlawful
under the Fourth Amendment. We affirm.
Police stopped Favreau's car for a highway offense.
After police officers had completed the license check that is
usual when a car is stopped for a driving offense, the drugs
were found hidden in the car during a search prompted by a drug
detection dog's indication of their presence. The issues on
appeal are whether, after checking the license and related
matters, the police had reasonable suspicion that a drug offense
was being committed, so as to justify a further period of
detention while the dog repeatedly circled the car, and whether
the added time so consumed (of about three minutes) exceeded the
permissible duration for the dog's reconnaissance. See
Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015); United
States v. Sokolow, 490 U.S. 1, 7 (1989) ("[T]he police can stop
and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable
facts that criminal activity 'may be afoot,' even if the officer
- 2 -
lacks probable cause." (quoting Terry v. Ohio, 392 U.S. 1, 30
(1968))).
We review these legal issues de novo. See United
States v. Dickerson, 514 F.3d 60, 65–66 (1st Cir. 2008). The
facts about events preceding the encounter are not in dispute at
this point, and in any event the district court's findings are
amply supported to survive the scrutiny for clear error
appropriate in reviewing the trial court's factual findings
grounding the denial of a suppression motion. See United States
v. Tiru-Plaza, 766 F.3d 111, 114–15 (1st Cir. 2014) ("Under this
clear-error review, we grant significant deference to the
district court, overturning its findings only if, after a full
review of the record, we possess 'a definite and firm
conviction' that a mistake was made." (quoting United States v.
McGregor, 650 F.3d 813, 820 (1st Cir. 2011))).
State Trooper Pappas was aware of Favreau's reputation
as a drug dealer, and about a year before the confrontation in
question he had received an informant's tip that Favreau
possessed a vehicle that contained a "trap," a secret
compartment in which drugs could be hidden and transported.1
1 The parties dispute the reliability of the information
the tipster had provided prior to this tip, and consequently the
reasonableness of crediting the tip itself. But, owing to the
synergy of the content of the tip and the facts that unfolded
prior to and during the stop of Favreau's car, reliability ex
ante is not a significant question here. The content of the tip
- 3 -
More pressing assignments kept Pappas from following up on the
tip, but when his schedule allowed it, he decided to conduct
surveillance on Favreau, with the help of Trooper Gagnon, as
well as Trooper Rooney (who worked with a drug detection dog).
Rooney drove a marked cruiser, but both Pappas and his unmarked
car were well known in the vicinity where the relevant events
took place.
On the day in question Pappas and Gagnon drove to
where Favreau's house could be seen. They saw him get in the
car the tipster had mentioned, pull away, signal a turn into a
cross street, nevertheless drive straight through the
intersection and, at a point where Pappas and Gagnon's police
car was visible, reverse direction and then turn into the cross
street in the direction opposite to his original directional
signal. Rooney testified that reversing direction as Favreau
had done was known as a tactic by suspects trying to elude
police following them. Soon after, the troopers located the car
parked in the lot of a store, which Favreau entered and left
multiple times. Before driving out of the lot he looked
was significant in making sense of the other facts recited
below, which themselves suggested that the tip might well be
true; all, together, had a degree of coherence that raised a
reasonable suspicion of wrongdoing, which in turn justified the
dog sniff that provided the further fact sufficient for probable
cause to search the car.
- 4 -
intently up and down each of the streets at the nearby
intersection.
After the suspect had left the store lot and made
another turn, this time without signaling, Rooney (following
him) put on the blue lights and siren. In violation of Maine
law, Favreau did not stop promptly, but turned down another
street before pulling over. In the ensuing conversation about
Favreau's driving violations, the status of his operating
license and any current court involvement, Favreau accused the
officers of mounting the very surveillance they had engaged in,
thus indicating that his driving maneuvers had been made with
the police consciously in mind. He was manifestly nervous and
had difficulty following directions for a pat-down, which
disclosed a wad of cash that Favreau said was $400. When asked
where he was going his answer was that he was going home, a
patent lie in light of his observed itinerary.
At this point the facts warranted reasonable suspicion
that Favreau's behavior before and after the stop showed a
degree of concern so far beyond anything normal as to suggest
that he was in fear of revealing evidence of wrongdoing. The
license check having been completed, Rooney circled the car with
the dog, and although the animal was initially distracted by
unrelated activity nearby, the several circuits of the car took
less than three minutes before the dog alerted and thus raised
- 5 -
suspicion to the level of probable cause to justify the search
that led to discovery of the trap and a commercial quantity of
cocaine within it.
On our de novo review, we agree with the district
court's mixed fact-law conclusion entirely. Although the
officers' initial and primary interest in observing Favreau was
his possible activity in the illegal drug trade, not the bizarre
driving for which they stopped him, or his unlawful failure to
respond readily to the lights and siren, their ulterior motive
is of no consequence under the Fourth Amendment. See Whren v.
United States, 517 U.S. 806, 813 (1996) (Supreme Court precedent
"foreclose[s] any argument that the constitutional
reasonableness of traffic stops depends on the actual
motivations of the individual officers involved"). Nor is there
any question that Favreau's driving justified the stop for the
license check and ensuing interview. The observations and
conversation provided evidence of ostensibly erratic driving and
behavior that would reasonably justify a stop and enquiry, but
in this case pointed to something more than difficulty following
the normal rules of the road: the apparent intent to evade known
police cars, the unnatural scrutiny of roadways before driving
from the store, the driver's accusation that the police had him
under surveillance, and abnormal nervousness together with clear
dishonesty about his immediate destination. The officers could
- 6 -
sensibly believe that he was afraid of something that concerned
the police, and the tip about the trap gave coherence to his
behavior and his fear. The officers could, as they did,
reasonably suspect transportation of drugs or some other
contraband concealed in the car. Nor, finally, is there any
basis to claim that the time consumed in the initial interview
and records check up to the point of ordering the dog sniff was
unusual or unreasonable.
Because the interview during this initial period of
detention was clearly lawful on the basis of traffic regulation
and incidentally disclosed further reason to suspect drug crime,
the reasonably justifiable time for further detention to test
the growing suspicion should be measured from the end of that
initial period. While there is no exact metric to measure it,
the times that have passed muster in prior cases of justifiable
detention on reasonable suspicion of criminal activity have
generally been relatively brief. See Terry, 392 U.S., at 30
("Each case of this sort will, of course, have to be decided on
its own facts."); United States v. Pontoo, 666 F.3d 20, 31 (1st
Cir. 2011) ("The appropriate length of a Terry stop is gauged by
whether the officer diligently pursued a reasonable
investigative approach . . . ."). And brief was the period
here, of about three more minutes until the dog's response
raised suspicion to the point of probable cause to search.
- 7 -
There is no serious question that this falls within the zone
considered reasonable under the Terry rationale. The probable
cause to search was therefore not the product of any
unconstitutionally lengthy detention prior to the search that
could be said to taint the validity of the search itself.
Affirmed.
- 8 -