United States v. Brown

United States Court of Appeals
For the First Circuit

No. 09-1803

UNITED STATES OF AMERICA,

Appellee,

v.

TIMOTHY BROWN,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Boudin, Gajarsa,* and Thompson,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Kelly Begg Lawrence, Assistant U.S. Attorney, with whom
Carmen M. Ortiz, U.S. Attorney, was on brief, for the appellee.

October 8, 2010

*
Of the Federal Circuit, sitting by designation.
 THOMPSON, Circuit Judge. Defendant Timothy Brown (Brown)

was convicted on one count of possession of cocaine base with

intent to distribute pursuant to 21 U.S.C. § 841(a)(1). Before

this court, Brown appeals his conviction, arguing that the district

court erred in denying both his suppression motion and his request

for an evidentiary hearing. For the following reasons, we affirm.

I. BACKGROUND

At approximately 9:00 pm on the evening of March 9, 2007,

Boston Police Department (BPD) Officer John Dineen (Dineen) and his

partner, Detective Brian Waters (Waters), received information from

their supervisor, Sergeant Thomas Joyce (Joyce), that Joyce had

observed the front-seat passenger of a black Ford Taurus smoking a

marijuana blunt. The front-seat passenger was later identified as

the defendant, Brown.

After receiving this information from Joyce, Dineen and

Waters, who were on patrol in an unmarked minivan, began to look

for the vehicle. Soon thereafter, Dineen and Waters located the

Taurus and followed it. Neither officer saw anyone smoking in the

vehicle. When the Taurus stopped at a red light, the officers

pulled up behind it, got out of their minivan, and ran to both the

driver and passenger sides of the Taurus, displaying their badges.

The minivan that Dineen and Waters were driving was not equipped

with either a siren or lights. Dineen approached the driver's side

of the Taurus and Waters, the passenger's side. Joyce, who had

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since arrived on the scene, joined Waters on the passenger's side

of the vehicle.

As Dineen and Waters got closer to the Taurus, they

claimed to have smelled a strong odor of burnt marijuana. Though

there is no statement from Waters in the record, Dineen testified

that Waters saw Brown holding a "smoking blunt marijuana

cigarette." When Dineen was at the driver's door, he knocked on

the window, showed his police badge, and identified himself to the

driver. At that point, the driver rolled down the window, and the

odor of marijuana purportedly became even stronger. Although

Dineen does not recall whether the Taurus's windows were open or

closed as he initially approached it, he testified that the smell

of burnt marijuana became stronger when the driver rolled down the

window. In the midst of asking the driver for her license and

registration, Dineen observed Waters and Joyce open the passenger-

side door, take the burning marijuana cigarette from Brown's hand,

and remove Brown from the Taurus. Waters and Joyce then arrested,

handcuffed, and pat-frisked Brown. No contraband was found during

the frisk. Following Brown's arrest, the Taurus was searched and

towed.1 During the search of the car, police officers recovered

two cell phones and marijuana in the center console.

1
The driver of the Taurus was driving with a suspended license
and also arrested. On appeal, the disposition of her individual
case is not at issue.

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 Brown was placed in the back of a marked police cruiser

for transport to the police station. En route, Dineen and Waters,

who were following the cruiser in their minivan, observed Brown

twisting and turning in the back seat. When Brown was removed from

the police cruiser at the station, a clear plastic bag fell from

his waist and onto the ground. The bag contained fifty-six small,

individually wrapped packages of crack cocaine, also known as

cocaine base. There were also two larger individually wrapped

packages, for a total of approximately sixteen grams of crack

cocaine. As Brown walked toward the booking entrance of the police

station, Waters saw Brown drop a second plastic bag--it contained

marijuana. During the booking process, a search of Brown's person

revealed another bag of marijuana and $707 in cash.

Brown was charged in federal district court with

possession with intent to distribute at least five grams of cocaine

base pursuant to 21 U.S.C. § 841(a)(1). Brown subsequently moved

to suppress the cocaine and other evidence retrieved by police

officers as the fruits of an illegal seizure. He also requested an

evidentiary hearing. Additionally, Brown argued that the

warrantless stop of the Taurus violated his Fourth Amendment rights

because the police lacked reasonable suspicion of criminal

activity. Brown argued that Joyce's "mere observation" that Brown

was smoking marijuana in the front seat of the Taurus was no more

than a "naked hunch" and therefore did not provide adequate grounds

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for reasonable suspicion and the subsequent stop of the Taurus by

Dineen and Waters. Brown submitted that absent reasonable

suspicion, the stop was an unconstitutional seizure in violation of

the Fourth Amendment. In its opposition to Brown's Motion to

Suppress, the government argued that the initial stop of the Taurus

was not a seizure within the meaning of the Fourth Amendment

because it was a consensual encounter and therefore was not subject

to the requirement that it be based on reasonable suspicion. The

government further argued that Brown was not entitled to an

evidentiary hearing because he failed to submit any affidavits or

other factual material to contest the record evidence.

On November 4, 2008, two months after the government

filed its opposition to Brown's Motion to Suppress, it filed notice

with the district court that it would not "be calling or relying

[on] information provided by BPD Sgt. Thomas Joyce in any hearing

in this matter." The government stated that because the evidence

showed that there was no seizure of the Taurus or its occupants

until after Dineen and Waters approached the vehicle and smelled

marijuana for themselves, Joyce's testimony would "not affect the

government's position or proof at suppression. Nor does it alter

the government's belief that no evidentiary hearing is required

based on the record before the Court."2

2
The government's decision to forego reliance on Joyce's
testimony was based on Joyce's suspension from active duty after he
was arrested while on vacation.

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 Also on November 4, 2008, Brown filed a supplemental

memorandum in support of his request for an evidentiary hearing.

In his memorandum Brown claimed that (1) there was reason to doubt

Joyce's observation that he saw Brown smoking marijuana because it

was "impossible, visually, to distinguish a tobacco cigar from a

'blunt' that has been refilled with marijuana"; (2) Dineen's

testimony that he could smell marijuana outside the car was "highly

suspect and should be subject to crossexamination"; (3) the driver

of the Taurus "denied that anyone was smoking marijuana" in the

vehicle; (4) whether the stop amounted to a seizure under the

Fourth Amendment was "highly fact-intensive and the reports and

testimony [were] inconclusive," and (5) "[t]he only way to resolve

th[e] issue [was] for the Court to hear evidence." Along with his

memorandum, Brown submitted an affidavit of the defense

investigator who interviewed the car's driver. The affidavit

averred that the car's driver had "stated that nobody smoked

marijuana in the car." The government opposed Brown's supplemental

request for an evidentiary hearing. It argued that the affidavit

of the defense investigator alone was insufficient to create a

material factual dispute.

On November 17, 2008, the district court issued its

opinion denying Brown's Motion to Suppress and Request for an

Evidentiary Hearing. The court stated that its findings were based

on the parties' submissions and were "not subject to genuine

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dispute." In denying the Motion to Suppress, the court first held

that Joyce's observation that the passenger of a black Ford Taurus

was smoking marijuana, which he directly relayed to Dineen and

Waters, provided reasonable suspicion to justify stopping the car.

Accordingly, the court determined that "even if [the officers']

approach to the Taurus and their identification of themselves to

the occupants as police officers constituted a 'seizure' of the car

for Fourth Amendment purposes, it was a lawful Terry investigative

stop."3 The district court noted that the evidence suggested that

Dineen and Waters smelled marijuana as they approached the Taurus,

before the driver rolled down the car window, but nonetheless

opined that the timing was "unimportant for present purposes."

According to the district court, if indeed Dineen and Waters

smelled marijuana before the driver rolled down the window, "it

would have confirmed their existing suspicion, but the existing

suspicion based on Joyce's direct observations that had been

conveyed to them was sufficient by itself to justify an

investigative stop."

Alternatively, the court held that the officers' approach

to the Taurus, when it was already stopped at a traffic light, was

not a "seizure" under the Fourth Amendment. Regardless of the

3
In Terry v. Ohio, 392 U.S. 1, 30 (1968), the Supreme Court
held that a police officer may initiate a brief investigatory stop
"where [he] observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be
afoot."

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theory relied upon, namely whether the officers' initial approach

to the car was justified by reasonable suspicion based on Joyce's

observations or whether it was a consensual encounter not subject

to the protections of the Fourth Amendment, the court held that

once the driver opened the car window and Dineen smelled marijuana,

that act "provided probable cause for the seizure both of the

smoking blunt and Brown's person."

Lastly, the court held that an evidentiary hearing was

not required because Brown had "not made a proffer of any evidence

that would controvert the basic facts of the encounter as related

by the police or justify a different conclusion." While the court

acknowledged the affidavit of the defense investigator, which Brown

had submitted, the court declined to afford it much weight.

According to the court, "the indirect method of conveying that

proffer suggests strongly that the driver is not willing to become

an affiant herself and say the same thing to the Court under oath,

subject to the penalties of perjury." Consequently, the court

concluded that Brown's proffer did not amount to a "sufficient

threshold showing that material facts [were] in doubt or dispute,

and that such facts [could not] reliably be resolved on a paper

record."

Brown filed a motion for reconsideration of the court's

denial of his request for an evidentiary hearing. In support of

his motion, Brown included an affidavit from the back-seat

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passenger of the Taurus which stated that "[n]obody smoked

marijuana in the car at any time on that evening." Brown argued

that the affidavit of the back-seat passenger, which was signed by

the passenger himself, along with the affidavit of the defense

investigator, created material issues of fact about whether Joyce's

observation that Brown was smoking marijuana was credible and

whether reasonable suspicion to seize the car and its occupants

actually existed. The court denied the motion on February 2, 2009.

On the same day, a jury trial commenced. At the conclusion of a

four-day trial, the jury found Brown guilty. On May 26, 2009, the

district court sentenced Brown to 180 months' imprisonment,

followed by five years' supervised release. This appeal followed.4

On appeal, Brown first argues that the district court

erred in finding that Joyce's observations provided officers Dineen

and Waters with reasonable suspicion to stop the Taurus. Brown

argues that because the government notified the court that it would

not rely on the information provided by Joyce, the court should

have evaluated the sufficiency of the government's evidence without

that information. According to Brown, absent Joyce's statement

4
On appeal, Brown does not argue that the district court
abused its discretion in denying his motion for reconsideration,
nor does he rely on the affidavit submitted with that particular
motion in his brief. Consequently, he has waived any challenge to
the court's denial of his motion for reconsideration. See Seale v.
INS, 323 F.3d 150, 152 n.1 (1st Cir. 2003).

-9-
that he observed Brown smoking a marijuana blunt, Dineen and Waters

lacked reasonable suspicion to stop the Taurus.

Next, Brown contends that even considering Joyce's

observations, reasonable suspicion was still lacking. Brown argues

that the reported observation of an individual smoking a "blunt

marijuana cigarette," absent any evidence of the detection of odor

or other suspicious activity, and evaluated in conjunction with (1)

the testimony of an officer that visual observation is insufficient

to distinguish between a tobacco filled blunt and a marijuana

filled blunt and (2) the absence of any observations of smoking or

suspicious activity by Dineen and Waters, is insufficient to

justify the stop.

Third, Brown asserts that the Taurus and its occupants

were seized prior to the time when the driver rolled down the

window. Brown submits that the facts of this case--two officers

exiting their vehicle in the middle of an intersection, running to

either side of a vehicle stopped at a red light, displaying their

badges, knocking on the window, and the vehicle remaining stopped--

show a submission to the display of authority necessary to

constitute a "seizure" for Fourth Amendment purposes.

Lastly, Brown submits that even assuming the paper record

were sufficient to support a finding of reasonable suspicion, the

district court nonetheless erred in denying Brown's request for an

evidentiary hearing. Brown asserts that there were material facts

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in dispute and that reliance on Joyce's observations required

evidence of their reliability. We will address these arguments in

turn. We begin with the applicable legal framework.5

II. DISCUSSION

A. Motion to Suppress

1. Standard of Review

"In an appeal from a suppression order, we review the

district court's legal conclusions de novo." United States v.

5
Brown submitted two supplemental briefs, pro se, to this
court pursuant to Fed. R. App. P. 28(j) and 10(e)(2). While
Brown's pro se submissions were procedurally sound, we find that
they are nonetheless substantively deficient. Brown's first
argument is that the district court erred in treating him as a
career offender because the fact of his prior convictions was not
proven to a jury beyond a reasonable doubt. That argument is
"hopeless." United States v. Richards, 456 F.3d 260, 262 (1st Cir.
2006). Prior convictions may be treated as sentencing factors even
when they "trigger[] an increase in the maximum permissive
sentence" to which the defendant is exposed. Almendarez-Torres v.
United States, 523 U.S. 224, 244 (1998). Here, the district court
correctly identified the guideline range for Brown as a career
offender (262-324 months) and correctly treated that range as
advisory (imposing a sentence of 180 months). Next, Brown argues
that Dineen's testimony of Joyce's alleged observations constituted
hearsay and thus was improperly admitted into evidence. However,
it is well-settled that "hearsay testimony is admissible at
suppression hearings." United States v. Miramonted, 365 F.3d 902,
904 (10th Cir. 2004)(citing United States v. Matlock, 415 U.S. 164,
173 (1974)); see also Fed. R. Evid. 104(a). Lastly, Brown contests
the admission of certain lab reports as a violation of the
Confrontation Clause because the lab chemist was not available for
cross-examination. However, the lab reports were never admitted
into evidence. Instead, the information concerning drug type and
weight was provided to the jury in the form of a joint stipulation
signed by Brown and the government. Accordingly, this argument is
without merit.

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Barnes, 506 F.3d 58, 61-62 (1st Cir. 2007)(citing Ornelas v. United

States, 517 U.S. 690, 699 (1996)). "[Underlying] factual findings

are reviewed for clear error, giv[ing] due weight to inferences

drawn from those facts by resident judges and local law enforcement

officers." Id. at 62 (internal quotation marks and citation

omitted). A factual finding is clearly erroneous "only if, after

considering all the evidence, we are left with a definite and firm

conviction that a mistake has been made." United States v.

McCarthy, 77 F.3d 522, 529 (1st Cir. 1996). Accordingly, we must

bear in mind that when more than one logical interpretation of the

evidence exists, the factfinder's ultimate conclusion cannot be

declared clearly erroneous. See United States v. Espinoza, 490

F.3d 41, 46 (1st Cir. 2007). Consequently, "if the district court

chooses to draw a reasonable (though not inevitable) inference from

a particular combination of facts, that inference is entitled to

deference." Id.

2. Reasonable Suspicion

"A finding of reasonable suspicion requires a

particularized and objective basis for suspecting the person

stopped of criminal activity." Id. at 47 (internal quotation marks

and citations omitted). "Th[e] particularity requirement means, in

effect, that such a finding must be 'grounded in specific and

articulable facts.'" Id. (quoting United States v. Hensley, 469

U.S. 221, 229 (1985)). While "officers may draw on their own

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experience and specialized training to make inferences from and

deductions about the cumulative information available to them . .

. a mere hunch does not rise to reasonable suspicion." Barnes, 506

F.3d at 62 (internal quotation marks and citation omitted).

As an initial matter, Brown submits that it was error for

the district court to rely on Joyce's reported observations as a

basis for establishing reasonable suspicion because the government

had previously informed the court that it would not be relying on

any information provided by Joyce. Brown argues that absent

Joyce's reported observation, there was no factual support for a

finding of reasonable suspicion.

Brown is correct in his assertion that absent reliance on

Joyce's observations there would be no factual grounds to support

a finding of reasonable suspicion--Dineen and Waters observed no

suspicious activity on their own. However, the district court was

not prevented from considering Joyce's observations, to the extent

the court determined them to be supported by the record. See

DeCaire v. Mukasey, 530 F.3d 1, 20 n.11 (1st. Cir. 2008)(stating

that district court may rely on theory not advanced by either party

because "[j]udges, like juries, may draw inferences, so long as

they are supported by the evidence"). The record here supports the

district court's finding that Joyce observed Brown, who was the

front-seat passenger in the Taurus, smoking what Joyce believed to

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be a marijuana blunt and that Joyce thereafter communicated his

observation with Dineen and Waters.6 There was no error.

Next, Brown argues that even if reliance on Joyce's

observations were permissible, the district court nonetheless erred

in holding that Joyce's observations were sufficient to provide

reasonable suspicion for the stop. Brown submits that the incident

report prepared by Joyce, which states that Joyce "did observe the

front passenger Brown smoking a blunt marijuana cigarette," is at

best "a constitutionally inadequate hunch."

The district court found that this "central premise" of

Brown's argument was "false." More specifically, the district

court found that Joyce personally observed Brown smoking a small

cigar in the distinctive manner that marijuana is smoked: holding

one's breath after taking a drag from the blunt that was being held

between the forefinger and thumb. This finding is supported by the

record. Nonetheless, Brown submits that Joyce's observation should

be discredited because (1) it is not possible to visually

differentiate between a marijuana blunt and a tobacco blunt and (2)

Joyce allegedly did not tell Dineen about his specific

observations, namely the manner in which Brown held and smoked the

blunt, until after Brown was arrested.

6
The record before the district court included Joyce's police
report of the incident, Dineen's sworn testimony before the federal
grand jury and at the probable cause/detention hearing, as well as
Dineen's affidavit in support of the criminal complaint. For a
more thorough discussion of the record evidence before the district
court, see infra pp. 14-16.

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 As support for his first contention, Brown relies

entirely on Dineen's probable cause/detention hearing testimony.

On cross-examination, Dineen acknowledged that there was no way to

know whether a blunt contained tobacco or marijuana unless one were

to actually smell the contents of the blunt. We think Brown is

attempting to make a mountain out of a mole hill. Read in context,

it is clear that what Dineen meant was that absent any other

evidence, such as smell, it would be impossible to determine with

certainty the exact contents of the blunt. On review of the

record, it is clear that this single piece of testimony does not

discredit Joyce's reported observation. Indeed, Dineen testified

before the grand jury that Joyce reported to him that Joyce

observed Brown holding the blunt tightly between his index finger

and thumb and inhaling deeply without immediately exhaling. Dineen

further testified that based on his training and experience, the

reported observations of Joyce were consistent with marijuana

smoking. It is well-established that the observations of

experienced law enforcement officers are entitled to deference.

See United States v. Dubose, 579 F.3d 117, 121 (1st Cir. 2009); see

also United States v. Ruidiaz, 529 F.3d 25, 29 (1st Cir.

2008)(determination of reasonable suspicion "requires a practical,

commonsense determination--a determination that entails a

measurable degree of deference to the perceptions of experienced

law enforcement officers")(internal citation omitted).

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 Furthermore, an important concept that Brown conveniently

fails to consider is that Joyce's observation did not have to be

correct to constitute reasonable suspicion. Constitutionally, all

that is required is a "reasonable and articulable suspicion of

criminal activity." United States v. Chhien, 266 F.3d 1, 6 (1st

Cir. 2001). Joyce's observations, as stated in his police report

and through Dineen's testimony, suffice to pass this test. Cf.

Rivera v. Murphy, 979 F.2d 259, 262-264 (1st Cir. 1992)(no

reasonable suspicion where police officer's affidavit stated only

that "I observed the Plaintiff . . . involved in what I believed to

be a drug transaction based on my observations, training, and

experience . . . .").

Brown's second contention, concerning the exact timing of

when Joyce communicated his observations to Dineen, whether before

Brown's arrest or at some later point, is immaterial based on the

"collective knowledge" doctrine. Under this principle, our "focus

is upon the collective knowledge possessed by, and the aggregate

information available to, all the officers involved in the

investigation." United States v. Winchenbach, 197 F.3d 548, 555

(1st Cir. 1999). In this circuit, we have recognized the

collective knowledge doctrine as a legitimate means through which

reasonable suspicion may be established. See Barnes, 506 F.3d at

62. Based on the district court's finding that Joyce observed

Brown smoking marijuana in the Taurus, a finding we have determined

is not clearly erroneous, the district court properly held that the

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officers had reasonable suspicion for the stop. Accordingly,

"[w]hile the information available to [Joyce] does not irrefutably

establish that [Brown was smoking marijuana], it provided a

reasonable basis for his suspicions. No more is required to

justify the officers' collective decision [to stop the Taurus and

investigate further]." United States v. Cook, 277 F.3d 82, 87 (1st

Cir. 2002).

On appeal, our function is limited to the determination

of whether the district court's factual findings and the inferences

made from those findings, which formed the basis of its conclusion

that reasonable suspicion existed to stop the Taurus, are plausible

and find support in the record. Espinoza, 490 F.3d at 47-48.

Though the district court's factual findings are not compelled by

the record, nor are its inferences compelled by the facts, we think

that both are nonetheless reasonable and therefore pass

constitutional muster. See id.

3. Seizure

Our affirmance of the district court's finding that

Dineen and Waters had reasonable suspicion to stop the Taurus

forecloses our need to address Brown's challenge to the district

court's alternate conclusion that the Taurus was not seized when

the officers first approached. Because Dineen and Waters were

acting with reasonable suspicion, even if their initial approach to

the Taurus constituted a "seizure" for purposes of the Fourth

Amendment, it was constitutionally permissible. See Espinoza, 490

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F.3d at 48 (citing United States v. Arvizu, 534 U.S. 266, 273

(2002)).

B. Request for Evidentiary Hearing

Brown's last argument on appeal is that the district

court erred in denying his Motion to Suppress evidence without an

evidentiary hearing. As an initial matter, the decision of whether

to conduct an evidentiary hearing is left to the sound discretion

of the district court. United States v. Calderon, 77 F.3d 6, 9

(1st Cir. 1996). On appeal, our review is for an abuse of that

discretion. Id.

"[A] criminal defendant has no absolute or presumptive

right to insist that the district court take testimony on every

motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.

1990). Accordingly, evidentiary hearings are only required when a

defendant makes "a sufficient showing that a warrantless search has

occurred." United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.

1994)(citing United States v. Migely, 596 F.2d 511, 513 (1st Cir.

1979)). A sufficient showing is made when the defendant "allege[s]

facts sufficiently definite, specific, detailed, and

nonconjectural, to enable the court to conclude that a substantial

claim is presented." Migely, 596 F.2d at 513 (internal quotation

marks and citation omitted). "Most importantly, the defendant must

show that there are factual disputes which, if resolved in his

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favor, would entitle him to the requested relief." United States

v. Staula, 80 F.3d 596, 603 (1st Cir. 1996).

Brown argues that an evidentiary hearing was necessary

for two reasons: (1) to evaluate the credibility of Joyce's alleged

observation in order to determine if reasonable suspicion actually

existed and (2) to develop additional facts surrounding the stop of

the Taurus to determine if, and when, a seizure occurred. In

regard to the first argument, Brown contends that a hearing was

necessary to resolve two alleged factual disputes: (1) Joyce's

purported observation that he saw Brown smoking a marijuana blunt

as opposed to Dineen's testimony that "visual observation was not

sufficient to determine the contents of a blunt" and (2) Joyce's

alleged observation that Brown was smoking marijuana, along with

Dineen's testimony that he smelled marijuana coming from the car as

he approached on foot, as opposed to the affidavit of the defense

investigator stating that the car's driver claimed that no one was

smoking marijuana in the car.

In regard to the first alleged factual dispute concerning

reasonable suspicion and Joyce's credibility, we do not believe

that Dineen's testimony, taken as a whole, contradicts Joyce's

alleged observation. On cross-examination the following colloquy

took place:

[Defense Counsel]: So unless one were to
actually smell what is coming out of the

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 blunt, there's no way to know what exactly is
contained in the blunt, is it?
[Dineen]: No sir.

Brown submits that Dineen's answer proves that Joyce's purported

observations were nothing more than "inadequate hunche[s]" and

accordingly, that there was no reasonable suspicion for the stop.

We disagree. Our review of the record shows that Dineen's entire

sworn testimony, which was properly before the court, was not as

limited as Brown interprets it to be. Before the grand jury,

Dineen testified that Joyce, in addition to observing the

appearance of the blunt, had observed the manner in which Brown

held and smoked the blunt--between his forefinger and thumb and

inhaling, but not immediately exhaling like one would a cigarette.

Dineen further testified that based on his training and experience,

the manner in which Joyce relayed that the blunt was being held and

smoked was consistent with marijuana smoking. With the full record

of Dineen's sworn testimony before it, along with Joyce's police

report which stated that Joyce "observed the front passenger Brown

smoking a blunt marijuana cigarette," we can by no means say that

the district court abused its discretion in denying Brown's request

for an evidentiary hearing.

Similarly, we do not believe that the district court

abused its discretion in resolving the alleged factual dispute

concerning whether marijuana was smoked inside the Taurus without

an evidentiary hearing. While Brown submits that the affidavit

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from the defense investigator created a disputed material fact

requiring a hearing, the district court was not obliged to afford

the affidavit the amount of significance Brown submits it should

have. In its Opinion and Order, the district court stated that

I accept as true that the driver said that
[nobody smoked marijuana in the car] to the
investigator. However, the indirect method of
conveying that proffer suggests strongly that
the driver is not willing to become an affiant
herself and say the same thing to the Court
under oath, subject to the penalties for
perjury.

The reasoning given by the district court is sound. When faced

with a single, second-hand statement from the car's driver, against

the consistent, sworn testimony of Dineen, the court's conclusion

that Brown's "meager and cautiously indirect proffer" did not merit

an evidentiary hearing was not an abuse of discretion. See Lewis,

40 F.3d at 1332 (holding that no evidentiary hearing was required

where defendant's only affidavit was prepared by his attorney who

had no first-hand knowledge of the events and government's evidence

consisted of sworn affidavits of investigating officers); see also

Calderon, 77 F.3d at 9 (holding no evidentiary hearing required

where defendant did not offer affidavit of person on whom he relied

to establish disputed fact, did not describe the circumstances

supporting his assertion, made no proffer of proof relative to any

other facts that might support his assertion, and where government

provided competent evidence to support the district court's

finding).

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 Brown's second contention as to why an evidentiary

hearing was necessary concerns the district court's finding that

the officers' initial encounter with the Taurus was not a seizure

under the Fourth Amendment. Brown submits that a hearing was

necessary in order to develop additional facts about the stop that

might lead to a contrary conclusion--that the stop was indeed a

seizure. We disagree. While the court certainly could have held

a hearing to ferret out the underlying facts, which may or may not

have been favorable to Brown, it was by no means under any

obligation to do so. See Staula, 80 F.3d at 604 (holding that an

evidentiary hearing was not required to "smoke[] out the truth"

regarding the officer's motive for searching defendant's truck);

see also United States v. LaBonte, 70 F.3d 1396, 1412-1413 (1st

Cir. 1995)(stating that the district court need not convene an

evidentiary hearing when presented with "no more than conclusory

prognostications and perfervid rhetoric"), rev'd on other grounds,

520 U.S. 751 (1997).

We think that the facts contained in the paper record

before the district court, which it found were "not subject to

genuine dispute," as well as this circuit's precedent, which the

district court cited, see, e.g., United States v. Ford, 548 F.3d 1,

6 (1st Cir. 2008), provided ample support for the court's finding

that the initial encounter between Dineen, Waters, and the Taurus

was not a seizure. There was no abuse of discretion.

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IV. CONCLUSION

For all of the foregoing reasons, the decision of the

district court is affirmed.

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