United States v. Jenkins

United States Court of Appeals
For the First Circuit

No. 11-1302

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH JENKINS,
a/k/a Joseph White, a/k/a Joseph Cruz, a/k/a Christopher Bunch,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

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

Before

Torruella, Circuit Judge,
Souter, Associate Justice,*
and Boudin, Circuit Judge.

J. Hilary Billings, Assistant Federal Defender, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

May 23, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 SOUTER, Associate Justice. This appeal challenges a

traffic stop, an ensuing warranted search of the detained van, and

a sentence imposed under the Sentencing Guidelines for possession

of a firearm by a felon. We affirm on all issues.

On the morning of March 18, 2010, Maine State Trooper

Robert Cejka was patrolling a stretch of Interstate 295 between

Brunswick and Gardiner, Maine, accompanied by his daughter, a

college student interested in criminal justice. Around 11 o’clock,

after stopping a pickup truck for speeding, he was walking back to

his cruiser when he saw an approaching minivan with what he

believed to be a glinting blue light, like those mounted on or

behind the windshields of some police cars. Because Maine law

prohibits this kind of light on civilian vehicles, see Me. Rev.

Stat. Ann. tit. 29-A, § 2054(2)(D)(4), Cejka gave chase and pulled

up behind the van with his siren going.

The driver, defendant Joseph Jenkins, did not pull over

immediately, but continued on for another 39 seconds, covering half

a mile. During that time Cejka saw Jenkins make a number of

motions to his right, reaching in front of the passenger seat and

behind it, while tapping his brakes several times as the van weaved

to the left. His eventual halt in the breakdown lane was abrupt.

Jenkins’s unusual behavior led Cejka to order him to

place his hands outside the driver’s side window, to be sure that

Jenkins was not armed. When Cejka looked inside, he saw a

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television screen on the dashboard playing a movie, but in place of

a blue light there was a large blue suction cup attached to the

windshield (used as a mount for an electronic device), and a blue

handicap placard hanging from the rearview mirror. The back of the

mirror was chrome, and Cejka supposed that light glinting off it

might have illuminated the cup or the placard.

Jenkins was talking on a cell phone as the officer

approached, and when Cejka asked about his furtive motions, Jenkins

said he had dropped the phone, picked it up, and called his wife to

tell her that he was being pulled over by the police. Jenkins

demonstrated his explanation by reaching between his legs and

pulling out a DVD remote control, apparently meaning to show that

he had dropped his phone down there. Cejka found the story

implausible, since he had seen Jenkins reaching over to the

passenger seat, where it was unlikely in any event that he had

dropped his phone.

When Cejka asked for Jenkins’s driver’s license and

registration, he replied that he had left them at home. When asked

for another form of identification, Jenkins produced a white

postcard with the name “White” on it and a Standish, Maine address,

and told Cejka he was Joseph White, born in 1966. Because Jenkins

appeared nervous, Cejka asked him if he had any outstanding arrest

warrants. Jenkins said no.

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 Cejka entered the “Joseph White” information in his

cruiser’s computer, but found no match in the Maine Department of

Motor Vehicles database. After Jenkins supplied more false

information and eventually admitted that he did not have a valid

license, Cejka arrested him for driving without a license and took

him to a nearby jail, where he refused to be fingerprinted and

produced more fiction. Cejka left to apply for a search warrant

and, while working on the application for it, got a call from the

jail informing him that the driver had finally identified himself

as Joseph Jenkins and admitted that he was wanted for kidnapping in

New Mexico. A Maine judge issued a warrant to search the van,

where Cejka and other troopers found a 9mm pistol and holster,

clips of ammunition, and a marijuana roach in the ashtray.

Jenkins was charged with the federal offense of

unlawfully possessing a firearm following a felony conviction. 18

U.S.C. § 922(g)(1). When the district court denied his motion to

suppress the evidence seized in the van, he pleaded guilty, with

right to appeal on the legality of the search. The court took a

prior conviction for kidnapping in New Mexico to be a crime of

violence and accordingly set Jenkins’s base offense level at 20

under the Sentencing Guidelines, leading to a 36-month prison

sentence.

On appeal, Jenkins argues for suppression of the evidence

from the van on three grounds: first, Cejka lacked reasonable

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suspicion to justify pulling the van over; second, Cejka had no

basis for continuing to detain the van once he knew there was no

blue light; and third, the warrant authorizing the search of the

van failed to describe with particularity the contraband to be

seized. Jenkins also challenges his sentence, contending that

kidnapping in New Mexico is not a “crime of violence” justifying an

enhanced sentence under the Sentencing Guidelines.

I

A traffic stop is constitutional if an officer has a

reasonable suspicion of unlawful conduct involving a motor vehicle

or its operation, United States v. Chhien, 266 F.3d 1, 5-6 (1st

Cir. 2001), but Jenkins says that Cejka’s suspicion that the van

carried an illegal blue light was unreasonable. He points out that

the van was visible to Cejka for only three seconds before it

passed him, and that during that time Cejka twice looked over his

shoulder at the pickup truck he had just stopped, leaving only a

second or fraction of a second to see any blue object in the van,

which turned out to have no blue light.

But there is no reason to second-guess the district court

in finding that a police officer who momentarily spotted a large

blue disc behind the windshield of a vehicle on an interstate

highway could reasonably suspect a violation of Maine’s law against

civilian blue lights. However briefly Cejka may have observed the

approaching van, the resemblance of the blue suction cup to a blue

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light1 and the other things behind the windshield that may have

enhanced the suggestion (the blue handicap placard and the glinting

chrome rearview mirror), could perfectly well have sparked

suspicion. We agree that it was reasonable, and Cejka could of

course stop the van to get a better look. See, e.g., United States

v. Trueber, 238 F.3d 79, 91-92 (1st Cir. 2001).

Jenkins falls back to serial challenges to Cejka’s

credibility, ranging from an imputation of vanity (maybe he wanted

to impress his daughter) to emphasis on minor variations in his

testimony (he said both that he “thought” and that he “believed” he

saw a blue light). These add up to nothing, as against the

credibility judgment that was up to the district court, which found

Cejka believable after reviewing several photos and the video and

audio recordings of the incident. There is no clear error in the

court’s determination, which is not undercut by the fact that Cejka

was mistaken; his “mistake [of fact] [need only have been]

objectively reasonable.” United States v. Coplin, 463 F.3d 96,

101 (1st Cir. 2006).

II

Next, Jenkins contends that Cejka’s authority to detain

him ceased along with any reasonable suspicion of illegal conduct,

1
We defer to the district court’s findings regarding the
suction cup, though we hardly need to. A photograph of the van’s
windshield in the record reveals a blue suction cup about the size
and appearance of a circular blue light.

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once he saw there was no blue light. See United States v. Cook,

277 F.3d 82, 85 (1st Cir. 2002) (the scope and duration of a

vehicle stop must be “reasonably related to the circumstances that

justified the interference in the first place”). But reasonable

suspicion did not vanish at that point, for interest in a blue

light had by then been supplemented by suspicion of more serious

criminal activity.2 Cejka had ample grounds for suspecting that

Jenkins was trying to hide evidence of something unlawful going on,

most likely transporting drugs or other contraband. He began to

act questionably as soon as Cejka signaled him to stop the van.

Instead of pulling right over, as most drivers would, he continued

on for another half mile, swerving and tapping the brakes before

coming to a sudden stop. During this evasion, he appeared to reach

over to the passenger side of the van, as though he were hiding

something under the seat or behind it, or reaching for a weapon.

“These furtive actions gave the officer[] reason to suspect . . .

criminal activity was afoot.” United States v. Martinez-Cortes,

566 F.3d 767, 771 (8th Cir. 2009); see United States v. Moorefield

111 F.3d 10, 12-14 (3d Cir. 1997) (suspect’s “furtive hand

movements and refusal to obey the officers’ orders constituted

2
Cejka mistakenly believed that driving while watching
television was a violation of Maine law, but Maine’s “operation of
a motor vehicle while distracted” statute requires another traffic
infraction at the same time. See Me. Rev. Stat. Ann. tit. 29-A,
§ 2118. Driving while distracted by a dashboard television, then,
cannot provide a basis for Cejka’s continuing investigation.

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suspicious behavior”). Jenkins gave implausible explanations for

his suggestive moves, and his responses to Cejka’s routine request

for identification, see Hiibel v. Sixth Judicial Dist. Court, 542

U.S. 177, 186 (2004), pointed to fear of exposure. He was nervous

and shaking, he handed Cejka a postcard with only an address and

the name “White” on it in lieu of an operator’s license, and none

of the identifying information he gave matched anyone in Maine’s

motor vehicle registry. After Jenkins responded that he was

licensed in “Arizona,” and Cejka pressed him about that, Jenkins

admitted that he had last been licensed there as a minor and so

owned up to driving without a valid license, the offense for which

Cejka arrested him. Every step of this investigation was supported

by reasonable suspicion of criminal activity, and with every step

the suspicion grew. The roadside detention prior to disclosure of

probable cause to arrest had reasonable and articulable support

throughout.

III

Although Jenkins does not challenge his arrest here, he

unrealistically complains that the warrant to search the van was

unsupported by probable cause, and he also charges that it failed

to describe the things to be seized with sufficient particularity.

As to probable cause, our business as a reviewing court “is not to

conduct a de novo determination of probable cause, but only to

determine whether there is substantial evidence in the record

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supporting the [judge’s] decision to issue the warrant.”

Massachusetts v. Upton, 466 U.S. 727, 728 (1984). As is obvious

already, the supporting evidence here was ample. Cejka’s affidavit

recounted Jenkins’s reluctance to pull over, his furtive movements

consistent with hiding contraband, his repeated attempts to deceive

Cejka as to his identity, his eventual admission that he had lied

and had no valid driver’s license, his continued attempts at

deception after arriving at a local jail, his refusal to be

fingerprinted, and his eventual admission of his true identity and

the existence of outstanding felony warrants. Transporting

contraband was by far the most likely explanation for this

narrative of strange behavior and concealment, which inarguably

justified the finding of probable cause to authorize the search for

illegal weapons and drugs.

Jenkins goes on to argue that the authorization to search

for “contraband to include weapons, firearms, explosives or illegal

drugs” is too general a description of the things to be seized from

the van to pass constitutional muster under the Fourth Amendment.

As he sees it, the police were required to establish probable cause

as to a specific type of contraband, rather than the four types of

potential contraband listed in the warrant, which in turn should

have been equally specific in “particularly describing” the place

and objects of the search. U.S. Const. amend. IV.

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 Fourth Amendment law does not support him. The warrant

in this case is no commission to fish for whatever the police may

catch. It allows a search only of one specific place, the mini-

van, and the seizure only of illegal drugs or weapons found there.

This is not a case with a description embracing the entire gamut of

possible unlawful possession, see United States v. Morris, 977 F.2d

677, 682 (1st Cir. 1992) (while police had probable cause to

suspect that a house contained cocaine and marijuana, “the

catch-all phrase authorizing seizure of ‘any other object in

violation of the law’ [was] impermissibly broad”). Nor is it one

where the contraband nature of the object of the search could not

be recognized by sight and the government failed to explain how it

would “differentiate . . . contraband from the rest of defendant’s

[property].” United States v. Klein, 565 F.2d 183, 188 (1st Cir.

1977) (analyzing a warrant to seize pirated tapes from a music

store).

While “weapons” is inexact it is not implicated in the

actual seizure here, given the specific listing of “firearms” as

subject to seizure, see Morris, 977 F.2d at 682, and there is no

claim that it affected the scope of the search. Nor did the

conclusory description of drugs as “illegal” give the police

unreasonable leeway. Where, as here, the existence of contraband

was likely but knowledge of the precise type of contraband was

practically impossible to obtain, probable cause to believe that

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“contraband” including “firearms, explosives or illegal drugs”

would be found was sufficient. See Morris, 977 F.2d at 681;

Spinelli v. United States, 382 F.2d 871, 886 (8th Cir. 1967) (“When

the circumstances of the crime make an exact description of the

fruits and instrumentalities a virtual impossibility, the searching

officer can only be expected to describe the generic class of items

he is seeking.”), rev’d on other grounds, 393 U.S. 410 (1969). As

Jenkins would have it, he could have told Cejka “I am transporting

an extremely large amount of contraband in my van,” and the police

could not have obtained a warrant to search it, because he declined

to pinpoint the subject of his illegal possession. The Warrant

Clause is not as rigid as that; reasonable cause is sufficient for

a search, and reasonableness is the standard for the required

specificity in a warrant. Morris, 977 F.2d at 681.

Finally, even if the warrant were deficient (contrary to

our understanding), it could hardly be called so overbroad (or

lacking in probable cause) “as to render official belief in its

[validity] entirely unreasonable.” United States v. Leon, 468 U.S.

897, 923 (1984). Because “a reasonably well trained officer” would

not have known “that the search was illegal despite the [judge’s]

authorization” in the warrant, id. at 922 n.23, Leon’s good-faith

exception to the exclusionary rule would support admission of the

evidence found in Jenkins’s van.

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 IV

Under the United States Sentencing Guidelines, a felon-

in-possession crime carries a base offense level of 20 if the

defendant’s prior felony conviction was for a “crime of violence.”

U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A). “Crime of

violence” is defined for this purpose as

“any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.”

Id. § 4B1.2(a).

The authoritative and controlling commentary3 on this

guideline provides that “‘Crime of violence’ includes murder,

manslaughter, kidnapping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of credit, and

burglary of a dwelling.” Id. § 4B1.2, cmt. (n.1). To know whether

a defendant’s prior crime is sufficiently like a similarly named

“crime of violence” under the Guidelines or commentary, we look at

each offense categorically, that is, “in terms of how the law

3
“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).

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defines the offense and not in terms of how an individual offender

might have committed it on a particular occasion.” Begay v. United

States, 553 U.S. 137 (2008). Here, the question is whether New

Mexico’s kidnapping statute requires proof of all the elements of

the standard or “generic” kidnapping offense assumed by the

commentary listing (so as to qualify as a crime of violence), or

whether that state’s statute covers conduct outside generic

kidnapping (and thus possibly not classifiable as violent under the

Guidelines). See, e.g., Taylor v. United States, 495 U.S. 575, 598

(1990).

New Mexico defines kidnapping in these terms:

Kidnapping is the unlawful taking,
restraining, transporting, or confining of a
person by force, intimidation or deception,
with intent:
(1) that the victim be held for ransom;
(2) that the victim be held as a hostage or
shield and confined against his will;
(3) that the victim be held to service against
the victim’s will; or
(4) to inflict death, physical injury or a
sexual offense on the victim.

N.M. Stat. Ann. § 30-4-1. Jenkins argues that the statute covers

non-violent conduct outside the bounds of a typical kidnapping

offense, and he points to the Information used to charge him, which

states that Jenkins “unlawfully took Corey Langford by force,

intimidation or deception, intending to hold Corey Langford for

service against his will, inflict death, or physical injury against

Corey Langford.” Jenkins contends that the offense he was charged

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with could be committed non-violently by deceiving someone to

accompany him merely to do some act for the perpetrator’s benefit,

which would qualify as “hold for service” kidnapping under the New

Mexico statute. See State v. Ortega, 817 P.2d 1196, 1211-1213 (N.M.

1991) (approving a jury instruction stating that “one is held to

service when he or she is made to submit his or her will to the

direction and control of another” and describing the requisite

purpose of holding for service as “to accomplish some goal that the

perpetrator may view as beneficial to himself or herself”).

As we understand this argument, it mistakes the question

before us. That question is whether the New Mexico statute confines

kidnapping within the bounds of the generic definition of that

offense. If it does, the enquiry stops there. Now it may well be

that some elements of an offense that is named as categorically

violent may be proven by showing acts of varying degrees of overt

force; adding pinches of arsenic to a victim’s breakfast oatmeal

seems less violent than riddling his body with machine gun bullets,

but it still is murder when the victim dies, and still categorically

a crime of violence under the commentary that mentions murder as one

such crime. If, therefore, an indictment charges the commission of

a state offense having a definition that falls within the generic

definition of an offense specifically named, it is irrelevant that

the indictment may be proven by one of the quieter alternative means

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of commission sufficient under both the state and generic

definitions.

We conclude that the New Mexico statutory offense fits

within the generic definition of “kidnapping,” one of the crimes

specifically listed as violent in the Guidelines commentary. In

coming to this conclusion, we start, like the briefs on both sides,

with the standard definition of kidnapping set out in United States

v. De Jesus Ventura, 565 F.3d 870, 875-879 (D.C. Cir. 2009), where

the court found that “nearly every state kidnapping statute includes

two common elements: (1) an act of restraining, removing, or

confining another; and (2) an unlawful means of accomplishing that

act.” Id. at 876. The court added a third, derived from the Model

Penal Code and a slim majority of States (including New Mexico),

requiring “a criminal purpose beyond the mere intent to restrain the

victim,” such as ransoming the victim for a reward or using the

victim as a hostage. Id. at 876-77.

We have no reason to doubt the soundness of the De Jesus

Ventura analysis, and New Mexico’s kidnapping statute checks all

three boxes of this generic definition. “[T]aking, restraining,

transporting or confining . . . a person, by . . . deception,” N.M.

Stat. Ann. § 30-4-1, satisfies the first two requirements: (1)

restraining another (2) by unlawful means, as an example of which

deception is a paradigm, expressly listed in the Model Penal Code

and in many state statutes. See Modal Penal Code § 212.1 (“A

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removal or confinement is unlawful within the meaning of this

Section if it is accomplished by force, threat or deception

. . . .”); see also, e.g., Va. Code Ann. § 18.2-47(A) (kidnapping

accomplished by “force, intimidation or deception”); Ohio Rev. Code

Ann. §§ 163.225, 163.215 (kidnapping when “taking or confinement is

accomplished by . . . deception”).

The third element (additional nefarious purpose for the

restraint) is met by the New Mexico statute’s four listed objects

of required intent (ransom; hostage; involuntary service; death,

physical injury, or sexual offense). N.M. Stat. Ann. § 30-4-1.

While Jenkins argues that holding for service (at least when the

original “taking” is by deception) falls outside the generic

“nefarious purpose,” the argument forgets that the New Mexico

statute speaks of holding for service “against the victim’s will.”

Holding for service is thus clearly akin to the other malicious

purposes listed in the Model Penal Code and the majority of state

statutes, like holding for ransom, or facilitating “commission of

a felony or flight thereafter.” Model Penal Code § 212.1. And this

is just what New Mexico’s Supreme Court has concluded, that holding

for service “should be construed to effectuate the same overall

scheme as . . . holding for ransom and as a hostage—namely, to

accomplish some goal that the perpetrator may view as beneficial to

himself or herself.” Ortega, 817 P.2d at 1212. Accord United

States v. Soto-Sanchez, 623 F.3d 317, 324 (6th Cir. 2010) (hold for

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service kidnapping “fit[s] within the generic, contemporary meaning

of the offense”).

Because kidnapping under New Mexico’s statute, including

kidnapping by deceit with the purpose of holding someone for

service, is “kidnapping” as generically listed in the Sentencing

Guidelines Manual § 4B1.2, cmt. (n.1), that is the end of the

matter. It is a “[c]rime of violence” under the Guidelines and the

district court correctly set Jenkins’s base offense level at 20.

Affirmed.

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