United States v. Pontoo

United States Court of Appeals
For the First Circuit

No. 10-2455

UNITED STATES OF AMERICA,

Appellee,

v.

GREGORY PONTOO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Selya and Howard,
Circuit Judges.

Henry W. Griffin, by appointment of the court, for appellant.
Margaret D. McGaughey, Assistant United States Attorney
(Appellate Chief), with whom Thomas E. Delahanty II, United States
Attorney, was on brief, for appellee.

December 5, 2011
 SELYA, Circuit Judge. Defendant-appellant Gregory Pontoo

stands convicted as a felon in possession of a firearm. 18 U.S.C.

§ 922(g)(1). He asserts that the police stopped him on the street

without reasonable suspicion and arrested him without probable

cause. These infringements, he says, demand suppression of the

weapon seized in the incident and dismissal of the charge against

him. We think not.

I. BACKGROUND

The events surrounding the appellant's arrest took place

in Lewiston, Maine. There are five protagonists: the appellant,

Gary Austin, Austin's estranged girlfriend (Sherry Boston), and two

Lewiston police officers (Tyler Michaud and Larry Maillet). As is

customary when reviewing the denial of a motion to suppress, we

rehearse the facts as supportably found by the court below. See,

e.g., United States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir. 2008).

Officer Michaud began an overnight shift at 11:00 p.m. on

August 19, 2009. Colleagues who had worked the previous shift told

him that they had responded to 26 Knox Street to deal with a

domestic disturbance involving Austin and Boston (neither of whom

Michaud knew).

Officer Michaud's assignment obligated him to patrol

alone in a squad car. Early in his shift, the police received a

report that Austin was on a landing outside Boston's window. Two

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patrolling officers, including Michaud, repaired to the scene.

They were unable to locate Austin.

Around 2:50 a.m., the same two officers responded to a

call advising that Austin had returned to 26 Knox Street and was

trying to gain access to his ex-girlfriend's apartment. The

officers found Austin, visibly agitated, on the sidewalk in front

of the apartment complex. They gave him both a disorderly conduct

warning and a criminal trespass warning.

About fifteen minutes later, Officer Michaud spotted

Austin (still visibly agitated) in a park several blocks from Knox

Street. By virtue of a municipal ordinance, the park was closed

during the early morning hours. At 3:05 a.m., Officer Michaud

issued a civil citation to Austin for violating that ordinance. In

this citation, he described Austin as a 33-year-old black male,

standing five feet seven inches tall and weighing 190 pounds.

At 3:21 a.m., two squad cars — one driven by Officer

Michaud and one by Officer Maillet — responded to an unrelated call

on Main Street. Like Officer Michaud, Officer Maillet had been

told upon beginning his shift about the ruckus at Knox Street.

During his shift, he also overheard radio traffic concerning 26

Knox Street. His curiosity piqued, he questioned Officer Michaud

concerning that domestic disturbance. Michaud explained that

Austin had appeared to be harassing a former girlfriend. He added

that he had given Austin a criminal trespass warning and sent him

on his way. Michaud described Austin to Maillet somewhat

-3-
differently than he had in the criminal trespass citation: as a

black male standing about six feet tall and weighing approximately

200 pounds. This description was important because Officer Maillet

did not know Austin.

While the two officers were conversing, a police

dispatcher reported that a man identifying himself as "Tyrone

Miller" had called from a payphone to proclaim that he had killed

a woman at 26 Knox Street. Both Officer Michaud and Officer

Maillet assumed, based on the chain of events, that "Tyrone Miller"

was Gary Austin.1

As might be expected, the reported slaying galvanized the

two officers into action. They traveled in their separate cars to

Knox Street — a drive that took approximately one minute. Officer

Michaud arrived first and parked at an intersection about 200 feet

from 26 Knox Street. While positioning his cruiser, he noticed a

man crossing the street. The man appeared to be of average build

and about five feet ten inches or six feet tall. Officer Michaud

thought that this man might be Austin, but the dim lighting

prevented him from making a positive identification. Taking a

middle ground, he radioed that he had seen "a subject" walking out

of 26 Knox Street.

1
At some point that morning, a dispatcher confirmed that
"Tyrone Miller" was an alias of Gary Austin's. It is unclear
exactly when this broadcast occurred but, given the officers'
assumption that Miller and Austin were one and the same, the
precise chronology does not matter.

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 Officer Maillet heard this broadcast and understood his

fellow officer to have said that "the suspect" was on the street.

He took this comment as a reference to Austin.

As Officer Maillet proceeded down Knox Street, he spied

the lone pedestrian. He noticed that the man fit the general

description of Austin that he had been given minutes earlier by

Officer Michaud. He did not see anyone else in the vicinity.

Concluding that the man was Austin, he braked to a halt, stepped

out of his squad car with his gun drawn, and ordered the man to

raise his hands, get down on his knees, and then lie flat. The man

complied.

Once the man was on his stomach, Officer Maillet

handcuffed him and performed a pat-frisk. This protective search

revealed a 9mm handgun tucked into the man's waistband. The weapon

had not been visible when the officer first confronted the man.

Officer Michaud ran up while Officer Maillet was

conducting the pat-down. He observed Officer Maillet remove the

gun from the suspect's waistband. Officer Maillet handed the gun

to Officer Michaud. It was only after those events had transpired

that Officer Michaud realized that the person in handcuffs was not

Austin but, rather, the appellant.

The officers arrested the appellant for possession of a

concealed weapon. See Me. Rev. Stat. Ann. tit. 25, § 2001-A(1)(B)

(2007). Only minutes had elapsed between the time of the "murder"

dispatch and the time of the arrest.

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 Following the encounter, the police transported the

appellant to the stationhouse and booked him. In the arrest

report, the appellant is described as a 24-year-old black male of

medium build, standing six feet tall and weighing 185 pounds.

When the dust settled, it became apparent both that the

murder report was a hoax and that the appellant had nothing to do

with the domestic dispute at 26 Knox Street. At about the time of

the appellant's arrest, other officers stopped Austin some three

blocks away and later charged him with making a false report of a

crime. That arrest report described him as a 33-year-old black

male of medium build, standing five feet eight inches tall and

weighing between 160 and 180 pounds.

As matters turned out, Austin had a history of making

false calls to the police department; but there is no evidence that

either arresting officer knew of this history. Nor did they know,

at the time of the stop, either that Austin had been apprehended or

that the murder report was false. Based on these circumstances,

the district court found that when Officer Maillet frisked the

appellant, he believed that he was searching Austin and that Austin

may have committed a murder.2

2
The findings and conclusions in this case were made in the
first instance by the magistrate judge. They were then adopted by
the district judge. For ease in exposition, we take an
institutional view and refer throughout to these findings and
conclusions as the findings and conclusions of the district court.

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 When the authorities discovered that the appellant had a

criminal record, a federal grand jury indicted him on a charge of

being a felon in possession of a firearm. See 18 U.S.C.

§ 922(g)(1). The appellant moved to suppress the gun, arguing that

the police had learned of it through an unlawful stop and arrest.

The government opposed this motion.

The district court referred the matter to a magistrate

judge, who conducted an evidentiary hearing. The magistrate judge

found both the stop and the arrest lawful and recommended that the

district court deny the motion to suppress. On de novo review, the

district court adopted the magistrate judge's report and

recommendation.

The appellant entered a conditional guilty plea, Fed. R.

Crim. P. 11(a)(2), reserving the right to challenge the refusal to

suppress. The court sentenced the appellant to a term of 36 months

in prison. This timely appeal ensued.

II. ANALYSIS

The appellant's asseverational array is fourfold. First,

he maintains that the district court clearly erred in finding that

Officer Michaud described Austin to Officer Maillet as a black

male, standing six feet tall and weighing 200 pounds. Second, he

argues that the stop was not justified at its inception because

Officer Maillet lacked a reasonable suspicion that the appellant

was involved in criminal activity. Third, he argues that the stop

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was so intrusive as to constitute a de facto arrest (for which no

probable cause existed). Fourth, he posits that even after finding

the handgun, there was no probable cause to arrest him. Before

addressing these contentions, we pause to erect the legal framework

for our analysis.

Judicial review of investigatory stops, familiarly known

as Terry stops, see Terry v. Ohio, 392 U.S. 1, 19-20 (1968),

involves a two-step appraisal. To begin, the stop must be

justified at its inception. See Ruidíaz, 529 F.3d at 28. In

addition, the actions taken must be "reasonably related in scope to

the circumstances which justified the interference." United States

v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).

To be justified at its inception, a Terry stop must be

accompanied by reasonable suspicion. Ruidíaz, 529 F.3d at 28. The

existence vel non of reasonable suspicion depends upon the totality

of the circumstances. United States v. Arvizu, 534 U.S. 266, 273

(2002). The inquiry is designed to ascertain "whether the

detaining officer ha[d] a particularized and objective basis for

suspecting legal wrongdoing." Id. (internal quotation marks

omitted).

This appraisal is made in the first instance by the

district court. The district court's findings of fact must be

accepted unless they are clearly erroneous. Ornelas v. United

States, 517 U.S. 690, 699 (1996). This is a deferential standard

of appellate review, which requires us to "proceed circumspectly

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and with regard for the district court's superior vantage point."

United States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007). Only

the district court's conclusions of law, including its ultimate

conclusion as to whether the facts as found show reasonable

suspicion, engender de novo review. Ornelas, 517 U.S. at 699.

A. The Claim of Factual Error.

The appellant insists that the court premised its

conclusion that Officer Maillet had a reasonable suspicion on an

incorrect factual finding. In this regard, he says that it

"stretches credulity" to believe that Officers Michaud and Maillet

discussed Austin at all, let alone that the former gave the latter

a description of Austin that differed from the description in the

criminal trespass citation. Viewed from any angle, this boils down

to a claim that the district court made an insupportable

credibility determination.

As we have said, a district court's factual findings may

be rejected only if they are clearly erroneous. As long as such

findings are supported by a plausible view of the evidence, they

will not be overturned. Espinoza, 490 F.3d at 46. Credibility

determinations are factual findings, and especially wide latitude

must be accorded to them. See Ruidíaz, 529 F.3d at 32.

In the case at hand, it cannot be gainsaid that Officer

Michaud's successive descriptions of Austin diverge from one

another. It is common ground that inconsistencies in a witness's

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statements can serve as a basis for an adverse credibility

determination. See, e.g., United States v. Henderson, 463 F.3d 27,

34-35, 47 (1st Cir. 2006). But a witness's statement need not be

a letter-perfect replica of an earlier statement in order to be

given credence. Gauging the effect of inconsistencies on a

witness's credibility is, within wide limits, for the trier of

fact, not for the court of appeals.

We can easily dispatch the appellant's claim that the

purported conversation between Officer Michaud and Officer Maillet

never took place. The record reflects that Officer Michaud cited

Austin and then proceeded to Main Street at 3:21 a.m. Officer

Maillet responded to that same call. The roughly eight minutes

that the officers took was ample time for the officers to have

dealt with the object of the call and briefly discussed Austin's

troublemaking. The district court's finding that Officer Michaud

gave Officer Maillet a verbal description of Austin was, therefore,

not clearly erroneous.

This brings us to the appellant's claim that the

description, if given at all, was not along the lines testified to

by the officers. The appellant vigorously asserted the discrepancy

in Officer Michaud's descriptions before the district court. The

court rejected this position and found that both officers had

testified truthfully as to how Officer Michaud described Austin to

Officer Maillet. We see no principled basis for a claim of clear

error.

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 The variation in the two descriptions is not particularly

surprising. Guessing at a stranger's height and weight is a

notoriously uncertain enterprise. Moreover, exactness in

recollecting what one previously may have estimated may sometimes

be too much to expect. Given the speed at which events evolved,

the discrepancy here is not so damning as to justify an overriding

of the trial court's credibility judgment.

B. Reasonable Suspicion.

The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." U.S. Const. amend. IV. This

constitutional assurance does not prohibit all searches and

seizures but, rather, only those that are unreasonable. Consistent

with this view, a brief investigatory stop based on a reasonable

suspicion that criminal activity may be afoot does not violate the

Fourth Amendment, even in the absence of probable cause. See

United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry, 392 U.S. at

29-30.

In defining terms such as "reasonable suspicion," courts

deliberately paint in broad strokes, eschewing overly confining

language. See, e.g., Ornelas, 517 U.S. at 695-96; Sokolow, 490

U.S. at 7-8. Withal, there are some general guideposts. Prominent

among these is the tenet that a finding of reasonable suspicion

must be premised upon "a particularized and objective basis for

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suspecting the particular person stopped of criminal activity."

United States v. Cortez, 449 U.S. 411, 417-18 (1981).

"Th[e] particularity requirement means, in effect, that

such a finding must be 'grounded in specific and articulable

facts.'" Espinoza, 490 F.3d at 47 (quoting United States v.

Hensley, 469 U.S. 221, 229 (1985)). The objectivity requirement

dictates a focus on what a reasonable law enforcement officer in

the same or similar circumstances would have thought. See id. It

is against this backdrop that we turn to the district court's

determination that the stop on Knox Street was justified at its

inception.

The district court's determination was founded on a

series of subsidiary facts. The officers were apprised upon

starting their shifts that trouble had been brewing at 26 Knox

Street. Thereafter, Officer Michaud personally responded to two

calls and found Austin to be agitated. When the murder report

surfaced, both officers were aware that Boston had called as

recently as 2:50 a.m. to report ongoing harassment by Austin. With

this background in mind, the officers took the report seriously and

deemed it likely that Austin had placed the call. Based on these

discerned facts, the district court concluded that the officers

reasonably suspected Austin of involvement in a serious crime:

murder.

Officer Maillet's suspicion was underpinned not only by

these facts but by other facts. For one thing, the only person

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walking in the vicinity of 26 Knox Street at that early hour was

the appellant. For another thing, Officer Maillet heard Officer

Michaud announce that he saw "a subject," which Officer Maillet

heard as "the suspect" and deemed a reference to Austin. Finally,

the appellant fit the general description of Austin that Officer

Maillet had received.

Given this factual mosaic, we think that the district

court supportably determined that Officer Maillet's stop of the

appellant was accompanied by a reasonable suspicion that a crime

(murder) may have been committed, that Austin may have committed

it, and that the appellant was Austin. A reasonably prudent police

officer standing in Maillet's shoes and knowing what Maillet knew

would certainly have harbored such suspicions.

To be sure, this suspicion was predicated on two mistaken

conclusions: that Officer Michaud had said "the suspect" rather

than "a subject" and that the appellant was Austin. The district

court found, at least implicitly, that these mistakes were

objectively reasonable and made in good faith. This finding was

not clearly erroneous. See, e.g., United States v. Lang, 81 F.3d

955, 965-66 (10th Cir. 1996).

Very little need be said about Officer Maillet's

misunderstanding of Officer Michaud's broadcast. In the heat of

the moment, it is easy to understand how a police officer might

hear "a subject" as "the suspect." The circumstances do not

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suggest bad faith, and the district court's acceptance of Officer

Maillet's explanation is in our view unimpugnable.

This leaves the mistaken identity. The district court

found an objectively reasonable basis for this mistake. It

likewise found that the mistake did not undermine the

reasonableness of the officer's suspicion. These findings make

good sense. Because reasonable suspicion does not necessitate a

high degree of certitude, there is no requirement that the facts on

which it is grounded be unfailingly accurate. In carrying out a

Terry stop, a police officer is not required to possess the clarity

of vision that arises only in hindsight. See Illinois v. Wardlow,

528 U.S. 119, 125-26 (2000).

Undaunted by the district court's adroit marshaling of

the facts, the appellant emphasizes that there was nothing

suspicious about his conduct; he was simply strolling down the

sidewalk at 3:30 in the morning. But the lawfulness of the conduct

that Officer Maillet observed does not dispel the reasonable

suspicion that underpinned the stop. In reviewing a trial court's

reasonable suspicion determination, we must take care not to

evaluate facts in splendid isolation. Such a balkanized approach

runs an unacceptably high risk of distorting reality. See Arvizu,

534 U.S. at 274-75. Rather, we must appraise the facts in the

context in which they occurred. See id.3

3
After this case was briefed and argued, a divided panel of
this court decided United States v. Camacho, ___ F.3d ___ (1st Cir.

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 The appellant emphasizes other facts as well: the murder

report turned out to be a hoax; Austin was arrested around the same

time that Officer Maillet encountered the appellant; and a

supervisor radioed for all officers responding to the murder report

to "stop anybody in that area." These facts, the appellant

contends, defuse any suspicion. We disagree.

We start with the "hoax" argument, which translates into

an argument that no murder had been committed. The law does not

require officers to determine whether a reported crime actually

took place before stopping individuals who may be fleeing from the

scene. See Adams v. Williams, 407 U.S. 143, 144-46 (1972). Here,

the district court found, and the record supports, that Officer

Maillet took the call seriously. There is no instance that he had

any inkling about Austin's history of false reports. Consequently,

there was no reason for him to think Austin had made a crank call.

Moving to the appellant's next point, the record shows

that Austin was arrested around the same time that Officer Maillet

confronted the appellant. For present purposes, however, the

decisive consideration is the district court's supportable finding

2011) [No. 09-2415]. There, the majority held that officers lacked
reasonable suspicion to stop an unknown person strolling down the
sidewalk near a recently dispersed gang brawl. Id. at ___ [slip
op. at 14-16]. Although both Camacho and this case involve
individuals who were merely walking down the street when stopped,
the similarity ends there. In this case, Officer Maillet had a
reasonable suspicion, based on the events of the evening, to stop
a specific individual (Gary Austin). The appellant was stopped
because he fit the description of Austin that the officer had been
given and was reasonably mistaken for Austin.

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that Officer Maillet was unaware of Austin's capture. The

appellant's argument is, therefore, unavailing.

By like token, Officer Maillet had no way of knowing that

there was any reason to question the parameters of Austin's

described height and weight. The relevant inquiry focuses on the

facts known to the officer, actually or constructively, at the time

of the incident. See id. at 146. That some other officer may have

known something different is immaterial.

Last, the appellant harps on the supervisor's direction

to all officers responding to the call to stop everyone in the

area. We need not grapple with the merits of this argument. In

this case, the record does not indicate that Officer Maillet's stop

was predicated on the general dragnet order.4

C. Scope of the Stop.

The appellant's next plaint targets the scope of the

stop. Because a Terry stop allows an individual to be seized on

less than probable cause, the extent of that intrusion must be

limited. See Acosta-Colon, 157 F.3d at 14. If police actions

associated with a Terry stop are too intrusive in nature or too

long in duration, those limits are exceeded. See Hayes v. Florida,

470 U.S. 811, 815-16 (1985).

4
We note in passing that an order to stop everyone in the
area is not necessarily problematic. Where, as here, the order was
given at 3:30 a.m. and refers to an area in which few, if any,
people are likely to be found, a dragnet approach may be
constitutionally permissible. See, e.g., Edmond v. Goldsmith, 183
F.3d 659, 662-63 (7th Cir. 1999).

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 There is no bright line that distinguishes a valid Terry

stop from its invalid counterpart (commonly known as a de facto

arrest). See Florida v. Royer, 460 U.S. 491, 506-07 (1983).

Sometimes, the line can be drawn by asking whether "a reasonable

man in the suspect's position would have understood his situation"

as being an arrest. Acosta-Colon, 157 F.3d at 14 (internal

quotation marks omitted). But it is an oversimplification to

suggest that every case will fall along this continuum. Terry

stops must be tailored to fit the exigencies of particular

situations, and the mere presence of arrest-like features is not

fatal to the validity of a particular stop. The critical

consideration is whether the arrest-like features can be reconciled

with the limited nature of a Terry stop. See id. at 15.

Evaluating whether the scope of an investigatory stop is

reasonable demands careful consideration of the totality of the

circumstances. This means weighing, among other things, "the

length of the detention, the restrictions placed on an individual's

personal movement, the force (if any) that was exerted, the

information conveyed to the detainee, and the severity of the

intrusion." United States v. Sowers, 136 F.3d 24, 28 (1st Cir.

1998). Above all, an inquiring court must bear in mind that "'it

would be unreasonable to require that police officers take

unnecessary risks in the performance of their duties.'" United

States v. Taylor, 162 F.3d 12, 18 (1st Cir. 1998) (quoting Terry,

392 U.S. at 23).

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 The appellant stresses that he was forced to the pavement

at gunpoint and handcuffed. In his view, this degree of coercion

and restraint betokens a de facto arrest. We recognize the

intrusiveness of the measures taken, but that is only part of the

equation. Context matters; and in this case the measures taken

were prophylactic and proportional to the danger associated with

stopping a suspected murderer. We explain briefly.

In a world fraught with peril, officer safety must have

a place at the forefront of police work. It follows logically that

a pat-frisk may accompany an investigatory stop whenever an officer

"has reason to believe that the suspect is armed and dangerous."

Williams, 407 U.S. at 146. In cases in which the individual

stopped is suspected of having just committed a murder, it is

reasonable for an officer to conclude that he may be armed and

dangerous. See United States v. Bullock, 510 F.3d 342, 346 (D.C.

Cir. 2007). A pat-down for weapons is, therefore, warranted. See

id.

In the same vein, the limits of a Terry stop are not

automatically transcended by an officer's use of other prophylactic

measures. When officer safety is a legitimate concern, a Terry

stop appropriately may involve the application of handcuffs, see,

e.g., United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)

(collecting cases); or effecting a stop at gunpoint, see, e.g.,

United States v. Jackson, 918 F.2d 236, 238 (1st Cir. 1990); or

ordering a suspect to the ground, see, e.g., United States v.

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Mohamed, 630 F.3d 1, 4, 6-7 (1st Cir. 2010). In an appropriate

case, such prophylactic measures can be employed in combination.

See, e.g., id.

In this instance, Officer Maillet (who had over two

decades on the police force) stopped a person whom he reasonably

believed had committed a murder. He had good reason to fear that

the suspect was armed and dangerous. He effectively neutralized

this looming danger by drawing his weapon, ordering the appellant

to get on the ground, handcuffing him, and conducting a pat-frisk.

Given the seriousness and recency of the suspected crime, we

conclude that the precautions taken did not transform the Terry

stop into a de facto arrest.

The brevity of what transpired locks up the conclusion

that the bounds of a Terry stop were not exceeded. The appropriate

length of a Terry stop is gauged by whether the officer diligently

pursued a reasonable investigative approach calculated to ensure

officer safety and, at the same time, confirm or dispel his

suspicions. See United States v. Sharpe, 470 U.S. 675, 685-86

(1985); United States v. Meadows, 571 F.3d 131, 142 (1st Cir.

2009). In this instance, no more than seconds passed between the

stop and the discovery of the gun. By that time, reasonable

suspicion to stop the appellant for a possible murder had morphed

into probable cause to arrest him for possession of a concealed

weapon. See infra Part II(D).

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 That ends this aspect of the matter. The stop at issue

here, while intrusive, was both proportional to the occasion and

brief in duration. Consequently, it was a valid Terry stop.

D. The Arrest.

Even though the police found a concealed weapon on his

person, the appellant strives to convince us that they lacked

probable cause to arrest him. We are not persuaded.

"Probable cause exists when police officers, relying on

reasonably trustworthy facts and circumstances, have information

upon which a reasonably prudent person would believe the suspect

had committed or was committing a crime." United States v. Young,

105 F.3d 1, 6 (1st Cir. 1997). Probable cause "does not require

the quantum of proof necessary to convict." United States v.

Miller, 589 F.2d 1117, 1128 (1st Cir. 1978).

In order lawfully to carry a concealed weapon in Maine,

a person must bring himself within one of several safe harbors.

See Me. Rev. Stat. Ann. tit. 25, § 2001-A(2). One such safe harbor

exists if the carriage of a handgun is pursuant to a valid permit.

Id.

Acquiring a permit requires the prospective permit-holder

to jump through several procedural hoops. See id. § 2003.

Furthermore, when a permit-holder is carrying a concealed handgun,

he must have the permit on his person, and produce it upon demand

to any law enforcement officer. Id. § 2003(11).

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 Here, there is no indication that the officers asked the

appellant whether he had a permit. But there is also no indication

that the appellant claimed to possess a permit, nor is there any

evidence that one was ever issued to him.

The appellant argues that the opacity of the record

favors his position. In support, he cites our decision in United

States v. Lott, 870 F.2d 778 (1st Cir. 1989), in which the

defendants were asked before their arrest if they had firearm

permits. See id. at 780. But the fact that the officers in Lott

asked whether the suspects possessed permits was not relevant to

the holding in that case. See id. at 780-85.

In this type of situation, context is all-important; each

case is likely to turn on its own facts. So it is here: suggesting

that the officers, in the circumstances at hand, had not developed

probable cause after finding a concealed weapon does violence to

the sensible proposition that "probable cause is a common sense,

nontechnical conception that deals with the factual and practical

considerations of everyday life on which reasonable and prudent

men, not legal technicians, act." United States v. Vongkaysone,

434 F.3d 68, 73-74 (1st Cir. 2006) (alteration and internal

quotation marks omitted). Common sense argues persuasively that if

the appellant possessed a valid conceal-and-carry permit, he surely

would have made that fact known.

To say more on this point would be supererogatory. In

the circumstances of this case, the officer's discovery of the

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concealed handgun after performing a Terry stop furnished probable

cause for arresting the appellant.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the judgment of the district court.

Affirmed.

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