United States v. Sowers

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 97-1845

UNITED STATES OF AMERICA,

Appellee,

v.

WAYNE O. SOWERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Shadur,* Senior District Judge.

William Maselli for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, and Jonathan

A. Toof, Assistant United States Attorney, were on brief, for

appellee.

February 6, 1998

*Of the Northern District of Illinois, sitting by designation.

SELYA, Circuit Judge. Defendant-appellant Wayne O.
SELYA, Circuit Judge.

Sowers challenges his conviction for possession of cocaine with

intent to distribute, see 21 U.S.C. 841(a)(1), (b)(1)(B), and

(b)(1)(C) (1994), by resurrecting some but not all of the

arguments advanced in his unsuccessful motion to suppress

evidence.1 In service of this end, the appellant argues that the

trial court erred in concluding that neither the detention of the

appellant and of a passenger in the vehicle that he was driving

nor a warrantless search of the appellant's jacket, worn by the

passenger, produced a cognizable constitutional insult.

Concluding, as we do, that the district court properly denied the

appellant's pretrial suppression motion, we affirm the judgment

of conviction.

I. BACKGROUND
I. BACKGROUND

On September 21, 1996, at approximately 10:00 p.m.,

Maine State Trooper Kevin Curran was traveling northbound along a

desolate stretch of the Maine Turnpike. While passing a Toyota,

he noticed a loud noise emanating from the vehicle's exhaust

system. His interest piqued, Curran also observed a missing

front license plate. He slowed and activated his cruiser's blue

flashing lights. The Toyota stopped in the breakdown lane.

Curran approached the vehicle from the rear and asked

the operator (Sowers) for his papers. Sowers produced a valid

license, along with a registration listing Tammy Gayton as the

1To the extent that arguments made at the suppression
hearing are not renewed on appeal, we deem them abandoned. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

2

Toyota's owner. When Curran asked the young woman seated next to

Sowers to produce some form of identification, she responded that

she was Tammy Gayton, but acknowledged that she had nothing on

her person to confirm that fact. Unsure as to the passenger's

true identity, Curran instructed her to exit the vehicle and

instructed Sowers to remain seated. Both complied.

After physically separating the two occupants, Trooper

Curran noticed that they both appeared extremely nervous. He

thus questioned each of them as to the extent, purpose, and

details of their travels. When substantial discrepancies

developed, his suspicions heightened.

Curran asked the woman to remain standing next to his

police cruiser while he initiated a cursory background check,

endeavored to verify her identity, and prepared citations for the

defective muffler, see Me. Rev. Stat. Ann. tit. 29-A 1912(1),

(4) (West 1993), and the missing license plate, see id. 452(a)

(West 1987). The background check revealed that Sowers's

driver's license was valid and that the Toyota was duly

registered to Gayton. Curran also obtained a rough physical

profile of Gayton, which seemed to match the woman whom he had

detained.

Despite receipt of this information, Curran remained

dissatisfied with the conflicting answers that he had received in

response to his earlier questioning. He apprised Gayton of his

lingering suspicions and sought permission to search her vehicle.

Gayton initially refused to consent to a search, but eventually

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relented after Curran informed her that he would summon a

narcotics dog to perform a sniff-search. After giving her

written consent to the vehicle search, Gayton's anxiety became

more pronounced.

Before attempting to search the vehicle, Curran radioed

for assistance. While awaiting backup, Curran performed a pat-

down search of Gayton's person. In the course of that search, he

felt a hard, cylindrical object through the material of the

jacket she was wearing. Curran queried Gayton about the item,

but she disclaimed any knowledge, stating that neither the jacket

nor its contents belonged to her. Curran removed the object from

the jacket pocket. It proved to be a package containing a

substance similar in appearance and consistency to cocaine.

Curran promptly arrested both Sowers (age 42) and Gayton (age

18).

Trooper Frank Holcomb arrived on the scene at

approximately 10:40 p.m. and Curran then searched the Toyota. He

found no contraband. After the troopers transported the two

suspects to the Androscoggin County Jail, Sowers admitted that he

had traveled to Massachusetts and bought quantities of both

powdered and crack cocaine.

II. PROCEEDINGS BELOW
II. PROCEEDINGS BELOW

On October 10, 1996, a federal grand jury returned an

indictment that charged Sowers with possessing or conspiring to

possess powdered and crack cocaine, with intent to distribute.

The appellant moved to suppress the evidence seized during and

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after the roadside events. He argued, inter alia, that the

protracted investigative stop constituted an unlawful detention,

and that in all events the pat-down search was unjustified. He

also sought to exclude the incriminating statements made by him

while in custody on the ground that those statements were the

fruits of an illegal detention.

Following an evidentiary hearing, the district court

denied the suppression motion. See United States v. Sowers, 1997

WL 97104 (D. Me. Feb. 21, 1997). The court ratified both the

stop and the ensuing roadside detention, see id. at *4, and also

determined that Sowers lacked standing to challenge the pat-down

search, see id. at *5.2

In short order, a jury found the appellant guilty on

two counts of the indictment.3 The district court sentenced

Sowers to a 46-month term of imprisonment. This appeal followed.

III. DISCUSSION
III. DISCUSSION

In addressing orders granting or denying suppression,

we scrutinize the trial court's factual findings for clear error

and subject its ultimate constitutional conclusions to plenary

2Although use of the term "standing" in this context may
offend a legal purist, we have employed that word as "a shorthand
method of referring to the issue of whether the defendant's own
Fourth Amendment interests were implicated by the challenged
governmental action." United States v. Sanchez, 943 F.2d 110,

113 n.1 (1st Cir. 1991); accord United States v. Kimball, 25 F.3d

1, 5 n.1 (1st Cir. 1994); United States v. Gomez, 770 F.2d 251,

253 n.1 (1st Cir. 1985); United States v. Lochan, 674 F.2d 960,

963 n.4 (1st Cir. 1982). We follow that praxis here.

3The government had brought, and thereafter dropped, a
conspiracy count.

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review. See Ornelas v. United States, 116 S. Ct. 1657, 1663

(1996); United States v. Schaefer, 87 F.3d 562, 565 & n.2 (1st

Cir. 1996); UnitedStates v.Zapata, 18F.3d 971, 975(1st Cir.1994).

A.
A.

We open our discussion of the merits by addressing the

appellant's charge that the officer's detention of the motorists

amounted to a de facto arrest. Sowers carefully cabins this

argument. He does not contest Judge Carter's finding that the

initial stop, for admitted equipment violations, was justified.

He argues instead that the length and tenor of the detention at

some point transmogrified a lawful Terry stop, see Terry v. Ohio,

392 U.S. 1 (1968), into an unlawful de facto arrest. Once Sowers

produced a valid driver's license and registration, this thesis

runs, Curran no longer had any valid basis to detain the

motorists and all the events that transpired thereafter

Gayton's removal from the vehicle, the subsequent questioning of

both individuals, the pat-down search, the seizure of the

contents of the jacket's pockets, the arrest, and the post-arrest

interrogation were beyond the pale.

The government says that Sowers lacks standing to voice

much of this plaint. A defendant ordinarily cannot base a

constitutional claim on a violation of a third person's rights.

See Rakas v. Illinois, 439 U.S. 128, 138-40 (1978); United States

v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994); United States v.

Santana, 6 F.3d 1, 8-9 (1st Cir. 1993). Therefore, to the extent

that Sowers's challenge rests on Gayton's privacy interests, it

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is barred.

Nonetheless, there is more to Sowers's challenge than

meets the prosecution's eye. Once the police halt a vehicle on

the highway, both the driver and the passengers are in a

practical sense subject to the officers' authority. See Whren v.

United States, 116 S. Ct. 1769, 1772 (1996) (explaining that all

occupants of a vehicle are subjected to a seizure, within the

scope of the fourth amendment, when a police officer effects an

investigatory stop of the vehicle). Thus, any one of them may

challenge his own detention regardless of whether he was the

immediate target of the investigation or whether he had a privacy

interest in the vehicle itself. See Kimball, 25 F.3d at 5. This

means that the appellant's challenge of his own detention is

properly before us.

On this issue, the appellant acknowledges that Terry

sanctions a brief detention of an individual to confirm or allay

a police officer's reasonable suspicions. 392 U.S. at 20-21.

Still, he contends that Trooper Curran's persistence converted an

initially lawful Terry stop into a de facto arrest based on less

than probable cause (and, hence, unlawful). This is a

commonplace argument, the evaluation of which tends to be case-

specific. See Zapata, 18 F.3d at 975 (observing that there are

no precise formulae that enable courts to distinguish between

investigatory stops and de facto arrests).

The effort to locate a particular sequence of events

along the continuum of detentions begins with a determination as

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to whether the officer's actions were justified at the inception.

See Terry, 392 U.S. at 19-20; United States v. McCarthy, 77 F.3d

522, 530 (1st Cir. 1996). In this case, the propriety of the

initial Terry stop cannot be gainsaid. The appellant's argument

hinges, therefore, on whether the actions undertaken by the

officer following the stop were reasonably responsive to the

circumstances justifying the stop in the first place, as

augmented by information gleaned by the officer during the stop.

See United States v. Sharpe, 470 U.S. 675, 682 (1984); United

States v. Stanley, 915 F.2d 54, 55 (1st Cir. 1990). To answer

this query, an inquiring court must consider the totality of the

circumstances and "balance[] the nature and quality of the

intrusion on personal security against the importance of the

governmental interests alleged to justify the intrusion." United

States v. Hensley, 469 U.S. 221, 228 (1985).

On this question, the district court supportably found

that Curran's level of warranted suspicion gradually escalated as

his encounter with Sowers and Gayton progressed. Based on

unfolding events, the trooper's attention (and, thus, his

reasonable suspicions) shifted away from the equipment violations

that prompted the initial stop toward a belief that the detainees

were engaged in more serious skulduggery. Such a shift in focus

is neither unusual nor impermissible. See, e.g., Zapata, 18 F.3d

at 974. In his testimony which the lower court credited, see

Sowers, 1997 WL 97104, at *4 Curran recited the particularized

bases for his dawning belief that Sowers and Gayton were engaged

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in criminal misconduct. He pointed, for example, to Gayton's

inability to confirm her identity, the pair's excessive

nervousness, and the conflicting stories that they told. We are

not at liberty blithely to second-guess the district court's

credibility determinations. See Zapata, 18 F.3d at 975.

Consequently we cannot say, in light of what the lower court

found to be the circumstances obtaining on the night in question,

that the officer's continued pursuit of his mounting suspicions

was unreasonable. See Davis v. United States 409 F.2d 458, 460

(D.C. Cir. 1969) (remarking that "conduct innocent in the eyes of

the untrained may carry entirely different `messages' to the

experienced or trained observer"); see also Stanley, 915 F.2d at

56.

By the same token, we are not inclined to hold that

Trooper Curran, in acting on these suspicions, perpetrated an

impermissible de facto arrest. In assaying such a claim, a court

must weigh, among other factors, 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. See McCarthy, 77

F.3d at 530. Here, no force or show of force occurred.4 The

restriction on Sowers's freedom of movement namely, the

4The appellant suggests that Curran's mention of a canine
sniff-search amounted to a threat, and thus was a show of force.
This argument never takes wing, however, because that
conversation took place with Gayton, out of Sowers's earshot.
Absent any communication, the "threat" could not have constituted
a show of force as to Sowers.

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trooper's instruction that he remain in the vehicle was not

onerous. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 886

(1997); Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per

curiam).

To sum up, the Supreme Court has cautioned that

reasonable suspicion, like probable cause, is not amenable to

technical formulations that purport to identify the precise types

of conduct or sets of circumstances that will or will not permit

a police officer to stop and detain an individual. See Ornelas,

116 S. Ct. at 1661. To the contrary, the Justices have looked

favorably upon a practical, commonsense approach to the issue of

reasonable suspicion. See id. Viewing the facts of this case in

a down-to-earth manner, we conclude that the district court did

not err in finding that Curran had adequate justification to

prolong the stop beyond the point at which Sowers produced his

papers and thereafter beyond the point at which Gayton's identity

was nominally corroborated. See, e.g., United States v. Young,

105 F.3d 1, 6 (1st Cir. 1997); McCarthy, 77 F.3d at 530. Even

though at least thirty minutes elapsed between the time of the

stop and the discovery of what appeared to be contraband, we see

no basis for disrupting the district court's founded conclusion

that no de facto arrest transpired. See United States v. Quinn,

815 F.2d 153, 157 (1st Cir. 1987) (remarking that "there is no

talismanic time beyond which any stop initially justified on the

basis of Terry becomes an unreasonable seizure under the fourth

amendment") (quoting United States v. Davies, 768 F.2d 893, 901

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(7th Cir. 1985)); see also McCarthy, 77 F.3d at 530 (chronicling

cases in which detentions of much longer duration than thirty

minutes have been approved). Put another way, the court was not

bound to hold that the relatively short-lived and, by all

indicators, non-confrontational detention that preceded the

officer's discovery of the apparent contraband constituted the

functional equivalent of a formal arrest.

B.
B.

The appellant also challenges the pat-down search of

Gayton, and in particular, the search of a jacket that he owned

which Gayton was wearing at the time. The district court

rejected this challenge. Relying on Frazier v. Cupp, 394 U.S.

731 (1969), and United States v. Alewelt, 532 F.2d 1165 (7th Cir.

1976), it concluded that the appellant, "upon lending his jacket

to Gayton, relinquished control over the jacket and forfeited the

reasonable expectation of privacy he had in the jacket." Sowers,

1997 WL 97104, at *5. Mindful that we are not chained to the

lower court's rationale but may affirm on any alternative ground

supported by the record, see Hachikian v. FDIC, 96 F.3d 502, 504

(1st Cir. 1996), we choose to follow a different analytic path.

Consequently, we take no view of the district court's

determination that Sowers, having lent his jacket, could no

longer claim a reasonable expectation of privacy vis- -vis the

contents of its pockets.

The fundamental flaw in the appellant's argument is

that it misapprehends the character of a Terry stop. The pat-

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down search that a Terry stop entails is a search of the person.

See Terry, 392 U.S. at 24-25 (describing the permitted pat-down

search as "a limited search of the outer clothing for weapons"

and recognizing that such a search "constitutes a severe, though

brief, intrusion upon cherished personal security"); see also 4

Wayne R. Lafave, Search and Seizure 9.5(b) (3d ed. 1996). To

say that such a search involves a separate and distinct search of

the detainee's clothing distorts the Terry principle. Thus, the

appellant, who was not himself subjected to the pat-down search,

cannot bottom his Fourth Amendment challenge on that search. See

Kimball, 25 F.3d at 5 (holding that "a proponent of a motion to

suppress must prove that the challenged governmental action

infringed upon his own Fourth Amendment rights"). So viewed, any

possessory interest that Sowers retained in the jacket which

Gayton was wearing during the search is an irrelevancy.

IV. CONCLUSION
IV. CONCLUSION

We need go no further. Having combed the record, we

are fully persuaded that the district court did not err in

denying Sowers's motion to suppress. The judgment of conviction

must therefore be

Affirmed.
Affirmed.

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